What are possible next steps for Elizabeth Holmes now that her appeal was denied?

Theranos founder Elizabeth Holmes earlier this week received a denial for her appeal to overturn her conviction, and legal experts weighed in on what legal steps she can still take.

Holmes and former Theranos President Ramesh “Sunny” Balwani on Monday saw their appeals to overturn their convictions for charges related to the now-infamous blood-testing company upheld by a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit.

That court’s decision to uphold their convictions came over three years after a jury found Holmes guilty of one count of conspiracy to commit fraud on investors and three counts of committing fraud on individual investors that the Department of Justice said “involved wire transfers totalling more than $140 million,” and Balwani was separately convicted of 12 federal criminal fraud charges by another jury. 

THERANOS FOUNDER ELIZABETH HOLMES’ CONVICTION UPHELD

Holmes’ and Balwani’s separate trials took place over several months a couple of years ago, ending in January 2022 and July 2022, respectively.

Both sought to appeal their convictions not long thereafter, with Holmes making arguments about testimony given during her trial as well as certain evidence and other aspects. The federal appeals court on Monday affirmed the convictions, raising the question of what legal steps Holmes could pursue if she wants to continue challenging her case.

A defense attorney in New York City told FOX Business that Holmes will “likely file a petition for certiorari to the Supreme Court.”

“However, those are rarely granted. There has to be an issue of potential precedential value or a decision is needed to address a split in the circuit courts,” that attorney explained.

Seth Kretzer, a criminal defense and appellate lawyer, similarly said the “only thing she really has left is to file a cert petition to the Supreme Court” but he said “there’s no circuit split” and a vast majority of cert petitions get “summarily denied.”  

“She’s welcome to take her stab, but there’s no circuit split,” he told FOX Business. “They just affirmed all the convictions, and it was pretty overwhelming.” 

If she were to file such a petition to the Supreme Court, Kretzer said it was “about as likely as getting struck by a bolt of lightning” that it moves forward. 

In a given term, the Supreme Court grants writs of certiorari and hears oral arguments for roughly 80 cases, according to the Supreme Court’s website. Some 7,000 to 8,000 petitions are sent to the country’s highest court each year. 

“Not all applications are made equal,” Kretzer told FOX Business, but he believes there is “no circuit split” in the opinions in Holmes’ case and “no grounds for a cert petition there.” 

He said she “challenged the sufficiency in the sentence and some evidential rulings,” which he said was “not really the sort of thing that gets a circuit split.” 

Holmes could also try to get an en-banc opinion at the appeals court level but, according to Kretzer, those “are very rare.”

“There’s no downside to her, so she may lob one in there, but the structure of that opinion is just not likely to go anywhere in my humble opinion,” he told FOX Business. 

The “really interesting thing” about the court’s Monday opinion is the “whole business between expert testimony and lay testimony,” according to Kretzer.

GET FOX BUSINESS ON THE GO BY CLICKING HERE

“That’s always an issue in these white collar cases. The problem is, you had several people who testified, they weren’t qualified as experts but they were just lay witnesses who were talking about stuff that ordinary people aren’t gonna know anything about, like assays and blood samples and so forth, and the Ninth Circuit actually did find that her arguments had some purchase there that some of these folks were really testifying as experts. Now, it wasn’t enough to disturb the conviction,” he said. 

He expressed skepticism that that aspect would be of help to her but said he thought “that was the part that law students will study and practitioners.” 

“Elizabeth Holmes’ defense team has two options, and she can pursue both of them,” federal defense attorney Ronald Chapman II told FOX Business. “First, she will seek an en banc ruling, which is an appeal to address all of the judges on the Ninth Circuit Court of Appeals. She will also have the ability to pursue an appeal before the United States Supreme Court.” 

He said he thinks she will “take on the issue of ‘harmless error’ and argue that the standard should not be used to dismiss an otherwise valid claim of error,” something he expects to be a “very important issue that the Supreme Court should address.” 

“If she proceeds to the Supreme Court, she will have 90 days to file a petition,” Chapman also said. “The Court will determine whether or not to accept her case, likely before the conclusion of this term, but her case would not be argued until next term, which begins in October.” 

CONVICTED CEO FRAUDSTER ELIZABETH HOLMES SAYS LIFE IN LOCKUP IS ‘HELL’ IN FIRST PRISON INTERVIEW

FOX Business reached out to one of Holmes’ lawyers for comment from Holmes on the ruling made by the U.S. Court of Appeals for the Ninth Circuit and on what she plans to do next legally. 

Holmes began her sentence in May 2023, reporting to a federal women’s prison camp in Texas. Balwani’s sentence started roughly a month before hers.

Holmes and Balwani are on the hook for $452 million worth of restitution.