Demystifying the Petition for Rehearing: Considerations on Whether to File a Petition or Not
It is the purpose of this article to define the considerations relevant to counsel’s determination of whether a petition for rehearing should be filed. Within the identification of these considerations, the relevant rules, statutes, and procedural aspects will be discussed, in order to assist counsel in making the correct determination of this potentially important decision.
Receipt of the Opinion of the Court of Appeal & Procedural Considerations
The first step in determining whether a petition for rehearing should be filed in the Court of Appeal is to review the opinion. Immediately upon receipt of the opinion, counsel should calendar the date by which a rehearing petition should be filed. Rule 8.268(b)(1)(A) requires the petition for rehearing be filed within 15 days of the issuance of the opinion. In addition, rule 8.268(b)(1)(B) allows a petition for rehearing 15 days after a publication order restarting the finality period unless a petition was already filed, and subdivision (b)(1)(C) allows it after a modification order changing the judgment. This means that counsel should review the opinion promptly upon its receipt, and should quickly make the determination of whether a petition for rehearing should be filed, in order to give him or herself enough time to prepare and timely file the petition. And while a petition for rehearing is normally not a lengthy pleading, it is important that counsel undertake its preparation promptly, so that s/he can turn her or his attention to filing the petition for review.
One of the most common errors newer appellate practitioners make is assuming that the filing of a petition for rehearing in the Court of Appeal tolls the deadline for filing a petition for review in the California Supreme Court. It does not. Counsel invariably must undertake to prepare the petition for review in the California Supreme Court before the Court of Appeal rules on the petition for rehearing. The Court of Appeal’s disposition of the petition will frequently be received only days before the short window for filing the petition for review. In fact, if the Court of Appeal does not make a ruling on the petition before the decision becomes final, the petition will be deemed denied. (Cal. Rules of Court, rule 8.268(c).) As a result, the better practice is to prepare the petition for review with the expectation that the petition for rehearing will be denied.
The review of the opinion of the Court of Appeal should be conducted with surgical precision. During the review of the opinion, counsel will read it to make two determinations: first, whether a petition for review should be filed; and second, whether a petition for rehearing should be filed.
It is not the case that a petition for rehearing should be filed only in cases where a petition for review is ultimately filed. In some cases, the petition for rehearing might actually be granted and full reconsideration given. In still others, for example, the opinion of the Court of Appeal may incorrectly state a fact which counsel believes to be pivotal. In such a case, the petition for rehearing may be filed and denied, but the Court of Appeal may correct the factual error in a modification to the opinion. This correction may then militate against the filing of a petition for review 1. Normally, however, the expectation is that a petition for rehearing will be followed by the filing of a petition for review 2.
The first reason to file a petition for rehearing is the most obvious: the Court of Appeal has decided the case in such a way that if the error of its ways were pointed out, it would certainly change its opinion. This rarely occurs.
Another reason for filing a petition for rehearing is when the opinion raises due process concerns. Appellate counsel should make a general assessment of whether the case was fairly heard. For example, a petition for rehearing would be in order where critical new authority has come to light after the case has been submitted, and it has gone unmentioned in the opinion.
A third reason for filing a petition for rehearing is one of process. Occasionally, the Court of Appeal raises an issue sua sponte, resolves the appeal on that issue, and fails to request supplemental briefing on the point. When this occurs, counsel should definitely petition for rehearing in order to have an opportunity to brief the issue. And these are the petitions for rehearing that are most often successful, presumably because this practice relates directly to due process, but also because it is a statutorily recognized right.
Government Code section 68081 mandates this result, when it provides:
Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.
As a practice matter, when a Court of Appeal identifies an issue sua sponte, rather than requesting supplemental briefing, it will indicate its proposed disposition based on the new issue with a statement of its reasons, and will offer counsel the option of briefing it. While this may technically comply with the statute, the psychological position of the court at that point is different. The court may already be invested in its point of view and ready to move on to another case. Under those circumstances, filing a supplemental brief may be a futile act. And in a practical sense, this is no different than filing a petition for rehearing, where the court has already issued its decision and “moved on” to other cases. The consensus among appellate practitioners is that briefing that precedes the filing of an opinion stands a better chance of persuading the court.
That an issue is raised by the Court of Appeal at oral argument, is extensively argued by both parties, and neither side requested the opportunity to submit supplemental briefing on the issue is not sufficient to comply with section 68081. (See In re Manuel G. (1997) 16 Cal.4th 805, 812-813.)
Federal Exhaustion Issues & AEDPA Considerations
The third consideration in determining whether to file for rehearing involves the requirements for proper presentation of an issue to the California Supreme Court. Rule 8.500(c)(1) of the California Rules of Court states that the California Supreme Court will normally not review an issue that could have been raised in the Court of Appeal, but was not. (See, e.g., People v. Camacho (2000) 23 Cal.4th 824, 837, fn. 4.) The Court will also not consider any issue or any material fact that was omitted from or misstated in the opinion of the Court of Appeal, unless the omission or misstatement was brought to the appellate court’s attention in a petition for rehearing. (Cal. Rules of Court, rule 8.500(c)(2); see, e.g., Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 283, fn. 3.) Ensuring proper presentation of an issue to the California Supreme Court is an important and common reason for filing a petition for rehearing.
A related strategic consideration is whether it is likely the appellant would seek federal habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA has altered habeas review of state convictions brought under 28 U.S.C. § 2254, and serious thought must be given to the interplay between the exhaustion doctrine and procedural default doctrine. The exhaustion doctrine prohibits a federal court from granting habeas relief to a state prisoner, unless the prisoner has first exhausted his remedies in state court. (O’Sullivan v. Boerckel (1999) 526 U.S. 838, 842.) In other words, the federal habeas petitioner must have given the state courts a full and fair opportunity to review the federal claims, which is defined as invoking “one complete round of the State’s established review process.” (Id. at p. 845.) This doctrine raises the question of whether a petition for rehearing should be filed when an appellate court fails to address a federal claim, or relies on a materially inaccurate view of the facts in its affirmance.
Federalization of claims for the purposes of the exhaustion doctrine is a detailed topic best considered at the time of drafting the original arguments presented to the Court of Appeal. (See related articles on this website, “How To Get Ahead In Federalizing” by Michelle May, and “Federalization Table” by Gail Weinheimer. It should be noted, however, that if a Court of Appeal opinion omits any mention of a federal issue, that by itself is irrelevant to whether the federal issue was properly presented in the appellant’s opening brief. (Dye v. Hofbauer (2005) 546 U.S. 1, 3; Smith v. Digmon (1978) 434 U.S. 332, 333.)
There are differing views on what counsel should do in situations covered by rule 8.500(c)(2) of the California Rules of Court, where the Court of Appeal’s opinion either omits a federal issue raised in the briefing, or makes a misstatement or omission of a fact that is arguably material to the determination of a federal issue.
Some experienced practitioners believe that a petition for rehearing may be necessary in many situations of this nature, in light of rule 8.500(c)(2). They believe the risks of such a petition are relatively minimal, and that not filing such a petition could possibly risk a failure to meet exhaustion requirements under O’Sullivan v. Boerckel, supra, 526 U.S. 838, which could prevent the client from getting the merits of a claim heard in federal habeas. Other experienced practitioners believe that a petition for rehearing is counterproductive in such situations, the risks of not filing one are relatively minimal, and the advantages in federal habeas – most notably, a more favorable standard of federal habeas review – are significant.
This article takes no formal position on the debate, which is further discussed in Part X of the related article on this website, “How To Get Ahead In Federalizing.”
Finally, it should be noted that if the client is serving a relatively short prison sentence or has a term of probation, the client might not have any desire to file a habeas corpus petition in federal court. In such a case, the AEDPA considerations discussed above are a matter of semantics, and further review in the state appellate courts is the only real recourse. A petition for rehearing may be appropriate in many such situations, to ensure that the Court of Appeal has ruled on every issue raised by the appellant and has done so based on a materially appropriate view of the facts.
A petition for rehearing must maintain an appropriate professional tone of respect for the Court and its opinion, and must not be used – even inadvertently – as a vehicle for counsel to vent anger or frustration. (Bus. & Prof. Code, § 6068, subd. (b); see In re Koven (2005) 134 Cal.App.4th 262, 275.)
While petitions for rehearing are usually not successful, a few are granted, and such a grant may sometimes yield a more favorable result or at least an opinion that improves the chances of further review. Petitions for rehearing can also be utilized in some situations as a desirable or necessary step toward further review, even if counsel does not believe the petition is likely to be granted. Whether succeeding in obtaining rehearing is the goal, or counsel simply wants to preserve an issue as thoroughly as possible for California Supreme Court or federal court review, knowing how to craft an appropriate petition for rehearing is an essential skill for all appellate practitioners.
1 For compensation purposes, if a petition for rehearing is filed, but no petition for review is filed, counsel should attach an explanation as to why this occurred; however, it will normally be expected that the filing of a petition for rehearing will be followed by the filing of a petition for review.
2 There is one other circumstance in which a petition for rehearing might be filed with no view toward the filing of a petition for review and that is where the court has made disparaging comments about appellate counsel based on factual errors. In this case, appellate counsel might petition for rehearing to “clear” his or her name. Time claimed for filing a petition for such purposes, however, will probably not be compensable under the guidelines. Fortunately, this is a rare occurrence.