I have been asked to describe the methods of how someone can get Federal Court review of a State Court conviction. There are two primary statutes which allow State Court convictions to be reviewed by a Federal Court.

The first statute, 28 U.S.C. §1257, permits a state defendant to petition the United States Supreme Court for a writ of certiorari. This federal statute may be used following a couple of different procedural events: 1) after a state defendant has exhausted his or her direct appellate claims through the state’s highest reviewing court  or, 2) after a state defendant has exhausted his or her claims by collateral review  through the states highest reviewing court. Depending upon State procedure, collateral review proceedings may be titled, “petition for post-conviction relief,” “state habeas corpus,” “writ of error coram nobis,” “relief from personal restraint,” or the like.

The second statute, 28 U.S.C. §2254, permits a defendant convicted in a State Court to submit a Habeas Corpus Petition to the Federal District Court having jurisdiction over the defendant. This federal statute could also be employed following a couple of different procedural events: 1) after a state defendant has exhausted his or her direct appellate claims  through the state’s highest reviewing court  or, 2) after a state defendant has exhausted his or her claims by collateral review  through the states highest reviewing court.

Most commonly, a defendant convicted in State Court will file a federal habeas corpus petition after exhausting one’s direct appeal and collateral relief claims in State Court. This is because a defendant can usually only file one federal habeas petition. By completing both the direct appeal and post-conviction process prior to filing the habeas petition, a State Court defendant can seek Federal Court review of all the presented claims from both proceedings.

Can I get federal review of a state court conviction
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When should I file a petition for certiorari?

To begin, a petition for certiorari consistent with 28 U.S.C. §1257 is an application for a writ of certiorari. The petition is the initial document which initiates the proceeding by requesting the United States Supreme Court to accept one’s case for review. The Supreme Court only accepts cases it wants. Not every case submitted is granted review. If the request for certiorari is denied, this means the Court isn’t willing to consider the case.

A petition requesting certiorari may be filed at two distinct times: 1) after the State’s highest reviewing court has denied relief, or was given an opportunity to grant relief, of any claims raised in the direct appeal  and, 2) after the State’s highest reviewing court has denied relief, or was given an opportunity to grant relief, of any claims raised in the post-conviction relief process.

The language of 28 U.S.C. §1257 only permits certiorari to be sought from final judgments or decrees “rendered by the highest court of a State in which a decision could be had[.]” This language mandates that a defendant convicted in State Court must pursue relief to the highest level of State Court, even if review by the State’s highest court is discretionary  meaning that the highest State Court has authority to grant or decline review of a lower level court decision. See: Hammerstein v. Superior Court, 71 S.Ct. 820 (1951).

Why should I file a petition for certiorari?

There are benefits to filing a petition for certiorari not available to a petitioner seeking habeas corpus relief. For instance, a petition for certiorari may be granted even where a defendant isn’t “in custody,” a requirement needed when pursuing federal habeas corpus relief.

There will be criminal convictions when the period of incarceration, probation, or parole has ended before the convicted individual has exhausted all state appellate and post-conviction review. When this occurs, relief under 28 U.S.C. §2254 isn’t available because the applicant petitioning for relief isn’t “in custody.” However, relief under 28 U.S.C. §1257 would still be available.

Another benefit for a defendant convicted in State Court to seek Federal Court review under 28 U.S.C. §1257, the Court isn’t confined to the deferential standards of review required under 28 U.S.C. §2254. This means the Court can consider the case just as if it were on appeal from the state trial court, without the restrictions enacted by the AEDPA. See: Madison v. Alabama, 139 S.Ct. 718 (2019) (“Because the case now comes to us on direct review of the state court’s decision (rather than a habeas proceeding) AEDPA deferential standard no longer governs.”)

When should I file a habeas corpus petition?

Typically, a defendant convicted in a state court should only file a federal habeas corpus petition consistent with 28 U.S.C. §2254 after completing multiple events including:

  1. a trial 
  2. a sentencing hearing 
  3. new trial motions 
  4. state direct appellate review of trial claims
  5. discretionary appeals in state court of appellate issues 
  6. petitioning for certiorari review to the United States Supreme Court of issues raised in the state appellate proceeding 
  7. state post-conviction proceedings to litigate remaining state and federal claims 
  8. all available levels of state appellate review to raised post-conviction relief claims  and,
  9. petitioning for certiorari review to the United States Supreme Court of the post-conviction relief issues.

Another requirement is that the state court defendant seeking federal court review must be in custody to be granted habeas relief. The definition of custody under 28 U.S.C. § 2254 is not limited to incarceration alone, but has been liberally defined to include persons on parole, those released on their own recognizance pending appeal, and those who have been released from confinement after having served their term or terms less good-time deductions. See: Barone v. Brown, 126 F. Supp.2d 805 (D.N.J. 2001).

I have written numerous posts regarding the habeas corpus process which include:

These are posts which should be read or shared with anyone considering filing a federal habeas corpus petition.

My closing thoughts

Clearly, there are set paths for a defendant convicted in a State Court to seek Federal Court review of his or her conviction. The key is to adhere to the proper procedure. Always make sure one’s claims are presented to every level of available state courts, in a timely manner, and give the state court fair notice to the federal claim being raised. I hope this offers some guidance.