If a defendant in a state criminal trial is convicted of a crime, several paths are open to challenge the conviction. The most obvious is an appeal to the next highest court for review of legal and, in rare cases, factual errors in the trial court. However, submitting a petition for a writ of certiorari (“petition for cert”) offers a different route.
A petition for Writ of Certiorari typically refers to a document filed by a losing party with the Supreme Court that requests the Supreme Court to re-examine the decision of a lower court. Certiorari is derived from the Latin word meaning “to be informed of”.
This petition usually appears later on in the appeals process when it is used. In the federal system, if someone disagrees with the legal decision from a lower court, for example a U.S. District Court, they can appeal. This appeal would often be to the U.S. Court of Appeals, which is required to rule on all appeals that are correctly presentented. If this person is dissatisfied with the ruling made by the Court of Appeals, they can request to move the case to the highest federal court in the U.S. — the Supreme Court.
However, unlike federal appellate courts, the Supreme Court is not required to hear all cases; no one may appeal as of right to that Court. Such petitions are ordinarily based on claims that the lower court incorrectly decided an important question of constitutional law or that the decision of the federal court creates a conflict among the circuits.
Once submitted, all of the Justices on the Supreme Court review a petition for a writ of certiorari. Four Justices must agree to grant certiorari (called “granting cert”) before the case will be heard by the entire Court.
The Supreme Court may grant a petition for cert because:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of the Court’s supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; or
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by the Court, or has decided an important federal question in a way that conflicts with relevant decisions of the Court.
Petitions for cert in the Supreme Court must be filed within ninety (90) days of the decision of the state court of last resort or the federal appeals court. The party seeking the writ must obtain a record of the proceedings from the lower courts and file a brief, the contents of which are dictated by the rules of the Supreme Court. Any person not part of the court’s proceedings may file a brief with the Court, which is called an amicus brief, to encourage or discourage the Court to grant cert. The Court will then make its decision based on the written briefs.
Preparing a petition for a writ to the Supreme Court is difficult, and obtaining the writ is usually unsuccessful. The Court gets thousands of petitions every year, and it grants only about one hundred of them. Generally, the more important the question of law or the greater the conflict among the courts as to the application of law, the better chance a defendant has of obtaining a writ.
Obtaining an attorney
Although the United States Supreme Court may issue a writ of certiorari, obtaining the writ is an arduous process that requires the assistance of an experienced criminal lawyer.
Spolin Law Firm, PC, can thoroughly review your case and circumstances to determine whether a petition for a writ of certiorari is a viable path for having your conviction overturned. To file a petition, you have only ninety (90) days from the date of the judgment of the last court from which you sought review of your conviction. With this short time frame, you should call our office immediately at (310) 455-8974 or use our online form to set up a consultation.