What Can One Do if the Appellate Court Erred?

After the court of appeal issues its opinion, either the respondent or appellant may file a petition asking the court of appeal to rehear the case. The court of appeal may also independently decide to rehear the case.

If an appellant has a court-appointed attorney, the attorney appointment includes filing a petition for rehearing if the attorney believes there are grounds to do so. A petition for rehearing must be filed within 15 days after the opinion is filed.

The court of appeal may then ask the other party to submit an answer brief. Generally, a court of appeal will rehear a case only if the opinion contains an important error of fact or law, the opinion overlooked well-established law or controlling authority, or relevant new law has been published since the case was decided.

The court of appeal usually will decide whether to grant or deny rehearing within a few weeks. If the court of appeal does not rule on the petition for rehearing by the time the opinion becomes final, then the petition is considered denied. California Rules of Court, rule 8.268.

Subsequently, either the appellant or respondent can file a petition for review in the California Supreme Court if they are dissatisfied with the court of appeal decision. The California Supreme Court also has the power to independently grant review without a request from either side.

If an appellant is represented by an appointed attorney in the court of appeal, the attorney is authorized to file a petition for review on the appellant’s behalf. If the attorney does not think there is any reason to file a petition for review, the attorney should inform the appellant about how they can file a petition on their own behalf.

A petition for review must be filed within 10 calendar days after the court of appeal decision becomes final. Usually, the court of appeal decision becomes final in 30 days and a petition for review is due within 40 days after the opinion was filed. California Rules of Court, rule 8.264(b); California Rules of Court, rule 8.500(e).

The petition for review should clearly state the issues in the case and discuss why review should be granted. The court of appeal decision must be attached as an appendix to the petition for review. California Rules of Court, rule 8.504(b). Copies of the petition must be served on superior court, court of appeal, and the Attorney General’s office. California Rules of Court, rule 8.500(f).

When the petition is filed, the court of appeal will automatically transfer the full case record to the California Supreme Court. California Rules of Court, rule 8.512.

The Supreme Court does not have to review a case and in practice the Supreme Court grants only a very small number of the petitions that it receives. The court generally will review a case only when review is necessary to ensure uniformity of court decisions (between courts of appeal) or settle an important question of law, the court of appeal had no jurisdiction to decide the case, or the court of appeal decision was not supported by a majority of the qualified judges on the panel. The court usually will not review issues that were not raised in the court of appeal and will not consider new evidence or arguments. California Rules of Court, rule 8.500.

An appellant who wants to preserve their right to raise their issues in federal court should always file a petition for review with the California Supreme Court, even if it is very unlikely that review will be granted. This is because someone who does not “exhaust state court remedies” by seeking California Supreme Court review will almost always be barred from bringing a federal habeas corpus petition on the issues.

The California Supreme Court has adopted a streamlined procedure for petitions for review that are filed only to “exhaust state court remedies.” The only meaningful difference between the normal and the streamlined procedures is that the petitioner need not explain why there are grounds for the California Supreme Court to grant review. California Rules of Court, rule 8.508; see also California Rules of Court, rule 8.504(b).

The California Supreme Court must rule on the petition for review within 60 days after it has been filed. However, the court may extend the deadline for good cause in 30-day periods up to a total of 90 additional days. California Rules of Court, rule 8.512.

If review is granted, the parties will usually have an opportunity to file further briefing and present oral arguments in the California Supreme Court. California Rules of Court, rules 8.520, 8.524.

An indigent person who had an appointed attorney in the court of appeal should be appointed an attorney for the California Supreme Court proceedings. Usually, the appellate attorney will be given an opportunity to continue handling the case.

If the California Supreme Court denies review, the state direct appeal process is over. The appellant may then seek relief on any federal constitutional claims by filing a federal petition for writ of habeas corpus in a federal district court.

In very rare cases, an appellant may want to consider filing a petition for writ of certiorari in the U.S. Supreme Court when the state appeal proceedings are concluded. A writ of certiorari is an order saying that the U.S. Supreme Court will consider the issues raised in the appeal. The U.S. Supreme Court considers only a very few cases that raise issues of great federal constitutional importance.

A petition for writ of certiorari must be filed within 90 days after the petition for review was denied by the California Supreme Court. If an appellant files a petition for writ of certiorari and the U.S. Supreme Court denies the petition, the appellant can still file a petition for writ of habeas corpus in a federal district court.

This article would not have been possible without reference to the outstanding treatise by the Prison Law Office, California Prison and Parole Law Handbook. We thank them for their great work.

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