How to Win a Petition for Writ of Certiorari

Aaron Spolin

Award-winning appeals lawyer Aaron Spolin has U.S. Supreme Court Petition experience, including a recent noteworthy case about ineffective assistance of counsel.

When you petition a court for writ (a formal written command), you must present clear facts and strong legal arguments. This requires knowledge of the law as well as an in-depth review of the record. Drafting, filing, and arguing a Petition for Writ of Certiorari is best left to experienced criminal appeals attorneys who have been successful with this task on many occasions. (Every case is unique, and prior success is not a “guarantee” of the same outcome on a future case.)

Award-winning criminal appeals lawyer, Aaron Spolin, explains how his firm Spolin Law P.C. wins a Petition for Writ of Certiorari: “We use these strategies: (1) show there is a disagreement among lower courts; (2) show this is an issue of national importance or wide application; (3) show there was reversible legal error in the lower court’s judgment; (4) show there is reason to review where there is no right to appeal.” The Supreme Court is not under any obligation to review lower court orders, so it’s important to make strong legal arguments that a review is necessary.

Mr. Spolin explains how his strategies work:

  1. Disagreement Among Lower Courts: Laws should be applied uniformly in the United States. If decisions in lower courts conflict, then the Supreme Court may issue a decision applicable to all the courts below it.
  2. Issue of National Importance or Wide Application: If it can be demonstrated that a decision affects a large number of people, for example a group of individuals that the law seeks to protect, then the court may grant a Petition. If an issue regularly occurs in the legal system, it is more likely to be considered.
  3. Reversible Legal Error: While a Petition should not focus solely on the merits of the decision below, it should include arguments about why the lower court’s decision was incorrect. Connecting that legal error to an impact on an issue of national importance can help the case.
  4. No Right to Appeal: A Petition for Writ of Certiorari does not require the defendant to have a right to appeal. In fact, the Supreme Court is not mandated to hear any specific issues. Instead, the justices must agree to review the case.

To learn more about how these strategies might apply to your case, call Mr. Spolin and his legal team at Spolin Law P.C. at (310) 424-5816.

  1. How to Win a Petition for Writ of Certiorari
  2. What Is a Petition for Writ of Certiorari?
  3. Types of Petitions for Writ of Certiorari
  4. When the U.S. Supreme Court Will Accept Cases for Review
  5. Learn How a Top Criminal Appeals Attorney Can Benefit Your Case

What is a Petition for Writ of Certiorari?

A Petition for Writ of Certiorari is an appellee’s formal request to a state Supreme Court or to the Supreme Court of the United States to review a case for error or violation that occurred in a lower court. Essentially, the Petition tells the Supreme Court what happened at the lower court, identifies the issue, and informs the Court why it should take the case. If the Petition is accepted, the Supreme Court will hear the case and issue an opinion.

  1. How to Win a Petition for Writ of Certiorari
  2. What Is a Petition for Writ of Certiorari?
  3. Types of Petitions for Writ of Certiorari
  4. When the U.S. Supreme Court Will Accept Cases for Review
  5. Learn How a Top Criminal Appeals Attorney Can Benefit Your Case

Types of Petitions for Writ of Certiorari

There are four primary situations that these petitions are appropriate and effective: direct appeal in a federal case; petition to the state’s highest court after a lower court denial; appeal from the highest state court in a state case; and post-Writ of Habeas Corpus. The Supreme Court of the United States is the Nation’s highest Court. Accordingly, it is extremely selective in the cases it hears, and a Petition for Writ of Certiorari must fit squarely within one of these categories to gain any traction from the Court.

1. Direct Appeal in a Federal Criminal Case

If you committed a federal crime, the United States will file criminal charges against you in the trial court, called the United States District Court. The District Court’s job is to make a record of the case and decide the facts and law through hearings and a trial. If you are not satisfied with a legal decision in the District Court and think that an error occurred, you can appeal.

In the federal system, this appeal typically goes to the U.S. Court of Appeals, also known as the Circuit Court. The Circuit Courts are required to consider and rule on all properly filed appeals. Unlike the District Courts, the Circuit Courts usually do not take evidence. Rather, the Circuit Courts look back at what happened in the District Court to see if any reversible errors were made. The Court of Appeals will then issue a ruling on the issue and if you are dissatisfied with that ruling, you may request the United States Supreme Court review the case. This request is called a Petition for Writ of Certiorari and is linear as it moved directly from trial (District Court) to appeal (Court of Appeals) to the U.S. Supreme Court as the next higher court.

2. Petition to the State’s Highest Court After a Lower Court Denial

If you are charged with a state crime, the state will file charges against you in the trial court (e.g., the Superior Court of California for the County of Los Angeles). If you then wish to appeal the trial court’s decision, you have an automatic right to appeal to the intermediate appellate court in your state (e.g., the California Court of Appeal). This means that the Appellate Court must hear your case. If you are dissatisfied with the outcome of the Appellate Court’s decision, you can then submit a Petition for Writ of Certiorari that the state’s highest court, often called the Supreme Court, hear your case.

Each state has their own procedures for handling Petitions, many of which follow the U.S. Supreme Court’s guidelines.

In California, a Petition may not be longer than 8,400 words or 30 pages, according to California Rules of Court Rule 8.504(b). The California Supreme Court has 60 days from the date it receives a Petition for review to make a decision about whether it will review the case. Like with the U.S. Supreme Court, at least four justices must vote to accept a case for review.

In Texas, a Petition for Review may not be longer than 4,500 words, according to Texas Rules of Appellate Procedure Rule 9.4. At least three justices must decide that a review is necessary. There is no deadline for the Texas Supreme Court to issue a decision about a case it decides to review.

In New York, the Court of Appeals, which is made up of a Chief Judge and six associate judges, is the highest court and court of last resort in most criminal cases. Petitions, also called “letters,” to the New York State Court of Appeals may not exceed 7,000 words, according to Court of Appeals of the State of New York Rules of Practice Rule 500.11.

3. Appeal From the Highest State Court in a State Criminal Case

Even if your case is not in federal court to begin with, a Petition for Writ of Certiorari may still provide an opportunity for the U.S. Supreme Court hear the case in certain circumstances. If your case is already in federal court, then the Petition for Writ of Certiorari can be filed during your appeal, discussed above. However, if you were charged with a crime in state court you can only ask the U.S. Supreme Court to hear a case after your direct appeal is final in that state’s highest court, through the process discussed above.

4. After Writ of Habeas Corpus Is Lost in District Court

“Habeas corpus” is a Latin phrase meaning “you have the body.” A Federal Writ of Habeas Corpus is a petition you can file if you are being detained against your constitutional rights. These petitions are filed in the U.S. District Court and only deals with the rights of the accused under the United States Constitution, not the state constitution.

Essentially, the habeas corpus petition claims the arrest, sentence, or trial violated U.S. constitutional law, making your continued imprisonment unlawful. For example, a person charged with a crime has a Sixth Amendment right under the U.S. Constitution to effective assistance of counsel regardless of the state they are charged in. If you were deprived of this right, you can petition for a Writ of Habeas Corpus to the United States District Court.

There are two different types of federal Petitions for Writ of Habeas Corpus.

The first, pursuant to 28 U.S.C. §2255, allows you to file a Writ of Habeas Corpus when you are in federal custody from a sentence of a federal court. After your direct appeal in a federal case you can file a Writ of Habeas Corpus in the U.S. District Court.

The second type, pursuant to 28 U.S.C. §2254, allows you to file a Petition for Writ of Habeas Corpus if you are in custody from a sentence from a state court. This allows you to bring U.S. constitutional issues into a federal court when you were tried and convicted in a state court. To file this type of Writ of Habeas Corpus you must first “exhaust” all state remedies before attempting to file a petition in the federal system. This means that any U.S. constitutional issue must first be raised throughout the state courts before you can bring it to the federal court, similar to the Petition for Writ of Certiorari resulting from a state court conviction. This type of writ is the final avenue for review of issues that were denied in state courts. For example, if the California Supreme Court denied your state Writ of Habeas Corpus, you can file one in the District Court to raise this issue federally.

If the U.S. District Court denies your Writ of Habeas Corpus, you do not have an automatic right to appeal to the U.S. Circuit Courts. You must first file a request for a Certificate of Appealability from the U.S. District Court that heard your writ. If this request is denied, you must then file a request for a Certificate of Appealability from the Circuit Court of Appeals for your district before filing the writ with the Circuit Court. If you have completed the above steps, the next and last step is to ask the Supreme Court to consider your appeal by filing a Petition for Writ of Certiorari.

Spolin Law P.C. will carefully evaluate all options to get to the Supreme Court through a Petition for Writ of Certiorari. Call us today at (310) 424-5816.

  1. How to Win a Petition for Writ of Certiorari
  2. What Is a Petition for Writ of Certiorari?
  3. Types of Petitions for Writ of Certiorari
  4. When the U.S. Supreme Court Will Accept Cases for Review
  5. Learn How a Top Criminal Appeals Attorney Can Benefit Your Case

When the U.S. Supreme Court Will Accept Cases for Review

Spolin Law legal team

The experienced legal team at Spolin Law P.C. reviews a case to determine the best strategies for a Petition for Writ of Certiorari. Call us to review your case: (310) 424-5816.

As stated above, review on a Writ of Certiorari is not a right but is instead at the Court’s discretion. The U.S. Supreme Court only grants Petitions for Writs of Certiorari for compelling reasons and a published set of rules govern their decisions. Rule 10 of the Rules of the Supreme Court outlines some guiding principles the Court uses when considering requests to grant review. When deciding to grant review the Court will consider whether:

  • The lower court’s decision on an important matter is in conflict with a decision of another lower court;
  • The lower court’s decided on an important federal question in a way that conflicts with a decision by a state supreme court;
  • A court of appeal’s decision is far departed from the accepted and usual course of judicial proceedings;
  • The Court must use its supervisory power because a court of appeals sanctioned such a departure by a lower court;
  • A state court has decided an important federal question in a way that conflicts with another state court or a federal court;
  • A state court or a United States court of appeals has decided an important question of first impression that should be settled by the Supreme Court.

These factors are not controlling nor “fully measuring the Court’s discretion.” However, these important factors should be addressed in your Petition if you would like the Court to hear your case.

How to Get a Petition Granted

The heart of the Petition for Writ of Certiorari is the section that outlines the reasons for granting review. It should argue that one or more of the factors above are present and demonstrate the urgency for it to be corrected immediately.

The second lesson is that your Petition must be easy to follow and rather short. The Court’s main focus is resolving the cases it has already granted Certiorari on. Thus, its time and attention at this stage are short. The Petition should use headings and other organizers so that your arguments are easier to read. Also, and most importantly, keep you Petition succinct and to the point. Rule 33 limits Petitions for Certiorari to 40 pages, but many are shorter.

The Supreme Court does not have to hear an appeal. The Court receives thousands of Certiorari Petitions per year and denies all but about 80 to 100. Good advocacy culminated through articulate and succinct writing is the key to getting your petition granted.

Examples of Cases Likely to Win Writ of Certiorari

The most common criteria for U.S. Supreme Court review is a Circuit split. In United States federal courts, a Circuit split occurs when two or more different Circuit Courts of appeals provide conflicting rulings on the same legal issue. This is problematic because it can cause vastly different outcomes in similar cases depending on where the case is heard. This also provides an incentive for the Court to grant certiorari in order to ensure uniformity among the lower courts.

Examples of existing Circuit Court splits include:

  • Whether police may seize an individual without a warrant, based solely on an officer’s reasonable suspicion that the individual being seized committed a misdemeanor
  • Whether the “special needs” exception permits warrantless strip searches of juveniles
  • Whether prisoners have a reasonable expectation of privacy for correspondence with their attorney
  • The appellate standard of review for a trial court’s determination of the scope of defendant’s consent to search

Another important aspect to highlight in your Petition for Writ of Certiorari is that you have an important federal question. Cases and claims arising under the United States Constitution are important federal questions and require an interpretation of the Constitution that the Supreme Court may wish to weigh in on for their correctness and application.

Examples of cases where certiorari was granted that involved important federal questions include:

  • Can states pass laws that challenge the power of Congress to regulate interstate commerce?
  • Does the First Amendment prohibit public school officials from barring students from wearing black armbands to symbolize anti-war political protest?
  • Can an institution of higher learning use race as a factor when making admissions decisions?
  • Is certain speech, including sending antiwar pamphlets to drafted men, made in wartime and deemed in violation of the Espionage Act, protected by the First Amendment?

These are simply some examples of Petitions that have a demonstrated track record of getting the Supreme Court’s attention. Every case must be properly analyzed in order to present the best argument for why the Supreme Court should accept your Petition. That’s why it’s important to work with an experienced criminal appeals attorney who understands these arguments.

Spolin Law P.C. thoroughly reviews every case to determine every option in state and federal courts. Call us for a case review at (310) 424-5816.

When Can I File a Petition for Writ of Certiorari?

A good rule of thumb is to file your Petition for Writ of Certiorari to the Supreme Court within 90 days of the last court’s action. In a criminal case, the petition must be filed within 90 days after entry of judgment. According to Rule 13, the Court may accept a petition filed after the 90-day window, but it is extremely rare and relies on a proper showing of good cause for the delay.

Federal Habeas Corpus proceedings are treated as civil in nature. This means that the time to appeal from the District Court to the Court of Appeals is 60 days and the time to petition for a Writ of Certiorari is 90 days, according to Rule 20.

Lastly, pursuant to 28 U.S.C. §2101(e), there is a possibility to file a Petition before the Court of Appeals has entered judgement. However, review of the case in this situation is predicated on a showing that the issue requires immediate determination from the Court and that the case is of such imperative public importance that the Court should deviate from the normal appellate practice.

  1. How to Win a Petition for Writ of Certiorari
  2. What Is a Petition for Writ of Certiorari?
  3. Types of Petitions for Writ of Certiorari
  4. When the U.S. Supreme Court Will Accept Cases for Review
  5. Learn How a Top Criminal Appeals Attorney Can Benefit Your Case

Learn How a Top Criminal Appeals Attorney Can Benefit Your Case

Spolin Law legal team

Spolin Law P.C. has a knowledgeable team of legal professionals who work together. They combine efforts to fight for their clients’ rights. Call us today at (310) 424-5816.

The Petition for Writ of Certiorari can be a useful tool and is a direct line to the nation’s highest court. If you have exhausted all remedies available at lower courts, filing a clear and concise Petition within 90 days of the last court’s decision may allow the Supreme Court to weigh in on your situation and correct the wrongs that have preceded it.

Spolin Law P.C.’s award-winning appeals lawyers have a record of successful outcomes. We win cases because:

  • We understand the legal process. Every court has a different process for submission of a Petition for Writ of Certiorari. Spolin Law P.C. attorneys have significant experience in the highest courts at state and federal levels. We will make sure your Petition is property written and meets all necessary deadlines.
  • We know how to persuade the court. The Supreme Court does not have an obligation to review a case. However, with the proper arguments, we can work to persuade the justices that your case is meaningful and worthy of their review.
  • We know how to win. Spolin Law P.C. has a record of success. We carefully review court records and develop strong strategies to win. We will do everything possible to get your case heard.

If you have questions about your case, contact Mr. Spolin and his legal team at Spolin Law P.C. at (310) 424-5816.