Rule 39. Petitions for writ of certiorari - Review of decisions of courts of appeal

Petitions for writ of certiorari; review of decisions of courts of appeal.

(a) Considerations governing certiorari review; grounds. Certiorari review is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only when there are special and important reasons for the issuance of the writ.

(1) CIVIL CASES AND NON-DEATH-PENALTY CRIMINAL CASES. In all civil cases and in all criminal cases other than cases in which the death penalty is imposed, petitions for writs of certiorari will be considered only:

(A) From decisions initially holding valid or invalid a city ordinance, a state statute, or a federal statute or treaty, or initially construing a controlling provision of the Alabama Constitution or the United States Constitution;

(B) From decisions that affect a class of constitutional, state, or county officers;

(C) From decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama;

(D) From decisions in conflict with prior decisions of the Supreme Court of the United States, the Supreme Court of Alabama, the Alabama Court of Criminal Appeals, or the Alabama Court of Civil Appeals; provided that:

1. When subparagraph (a)(1)(D) is the basis of the petition, the petition must quote that part of the opinion of the court of appeals and that part of the prior decision the petitioner alleges are in conflict; or
2. Where it is not feasible to quote that part of the opinion either because no wording in the opinion clearly shows the conflict or because no opinion was issued, the petition shall state that this subparagraph is applicable and then state, with particularity, how the decision conflicts with a prior decision; and,

(E) Where the petitioner seeks to have overruled controlling Alabama Supreme Court cases that were followed in the decision of the court of appeals.

(2) DEATH-PENALTY CASES. When the Court of Criminal Appeals has affirmed a sentence imposing the death penalty, counsel who represented the appellant on the appeal to the Court of Criminal Appeals or successor counsel shall prepare and file in the Supreme Court a petition for a writ of certiorari for review of the decision of the Court of Criminal Appeals. That petition shall be governed by this rule, except that:

(A) In addition to the bases for consideration of petitions for the writ of certiorari listed in subsection (a)(1) of this rule, a petition for a writ of certiorari will also be considered from a decision failing to recognize as prejudicial any plain error or defect in the proceeding under review whether or not the error or defect was brought to the attention of the trial court or the Court of Criminal Appeals.

(B) In addition to the requirements of subdivision (d) of this rule, dealing with the form of the petition, when review is sought for failing to recognize as prejudicial any plain error or defect, the petition shall contain a concise statement of the grounds, including a description of the issue and circumstances warranting plain-error review.

(C) The Supreme Court may enlarge the time for filing the petition. See Rule 2(b).

(D) The scope of review discussed in subdivision (k) of this rule is modified only to the extent necessary to permit the Supreme Court to notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court or the Court of Criminal Appeals or set forth in the petition, and to take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner; provided, however, that nothing in this subsection shall require the Supreme Court to conduct an independent review for the purpose for determining the existence of plain error.

(E) The provisions of this subsection (a)(2) shall be effective May 19, 20001.

(b) Review by petition for writ of certiorari of decisions of the Court of Civil Appeals.

(1) APPLICATION FOR REHEARING NOT PREREQUISITE TO CERTIORARI REVIEW. The filing of an application for rehearing in the Court of Civil Appeals is not a prerequisite to review by certiorari in the Supreme Court. If an application for rehearing was filed, however, it must have complied with Rule 40(e).

(2) DOCKET FEE. Payment of the amount prescribed in Rule 35A(a)(3) is to be made to the clerk of the Supreme Court when the petition for the writ of certiorari is filed.

(3) TIME FOR FILING. The petition for a writ of certiorari shall be filed with the clerk of the Supreme Court pursuant to Rule 25(a), within 14 days (2 weeks) after the release of the decision of the Court of Civil Appeals. If an application for rehearing has been filed with the Court of Civil Appeals, the petition for the writ of certiorari shall be filed within 14 days (2 weeks) of the decision of that court on the application for rehearing.

(4) WHEN BRIEFS ARE TO BE FILED; UNAUTHORIZED BRIEFS STRICKEN. No briefs shall be filed by the petitioner or the respondent before the writ issues unless ordered by the Court. If the writ issues, respondent may (as provided in subsection (g)(2) of this rule) brief the sufficiency of the grounds stated in the petition. Briefs filed in disregard of this subsection will be stricken.

(c) Review by petition for writ of certiorari of decisions of the Court of Criminal Appeals.

(1) APPLICATION FOR REHEARING PREREQUISITE TO CERTIORARI REVIEW. The filing of an application for rehearing in the Court of Criminal Appeals is a prerequisite to review by certiorari in the Supreme Court, except:

(A) In the case of a pretrial appeal by the state in a criminal case (see Rule 15.7, Alabama Rules of Criminal Procedure), or

(B) In the case of review of a decision by the Court of Criminal Appeals on an original petition for a writ of mandamus where the petitioner seeks review by the Supreme Court by petition for writ of mandamus pursuant to Rule 21(e) of these Rules. In those cases in which an application for rehearing is required, the application must comply with Rule 40(e).

(2) TIME FOR FILING. The petition for the writ of certiorari shall be filed with the clerk of the Supreme Court pursuant to Rule 25(a), within 14 days (2 weeks) of the decision of the Court of Criminal Appeals on the application for rehearing, except that in the case of a pretrial appeal by the state in a criminal case, the petition for the writ of certiorari must be filed within 7 days (1 week) of the judgment of the Court of Criminal Appeals or within 7 days (1 week) of that court's order overruling an application for rehearing.

(3) NO BRIEFS TO BE FILED PRIOR TO ISSUANCE OF THE WRIT. No briefs shall be filed by the petitioner or the respondent unless ordered by the Court. Respondent may address the sufficiency of the grounds stated in the petition in the respondent's brief if the writ issues

(d) Form of and length of petition. The petition shall comply with the provisions of Rule 32(a) and (b)(2) governing form and shall not exceed 3,000 words (15 pages for a petition filed pro se) (except in capital cases). The petition shall contain:

(1) The style of the case, the name of the petitioner, the circuit court from which the cause is on appeal, and the name of the court of appeals to which the petition for certiorari is directed;

(2) The date of the decision sought to be reviewed and, if an application for rehearing was filed, the date of the order overruling the application for rehearing;

(3) A concise statement of the grounds, 39(a)(1)(A)-(E), supra, on which the petition is based — and in a death-penalty case a statement in accordance with 39(a)(2)(A) and (B) — provided that:

(A) When subparagraph (a)(1)(D) is the ground for the petition, the petitioner must quote that part of the opinion of the court of appeals and that part of the prior decision the petition alleges are in conflict; or

(B) Where it is not feasible to quote that part of the opinion either because no wording in the opinion clearly shows the conflict or because no opinion was issued, the petition shall state that this subsection is applicable and then state, with particularity, how the decision conflicts with a prior decision;

(4) A copy of the opinion or the unpublished memorandum of the court of appeals and the court of appeals’ order or notice on the application for rehearing, if an application for rehearing was filed, attached to the petition as an exhibit; and

(5) If a party is not satisfied with the facts stated in the opinion or the unpublished memorandum of the court of appeals, or if the court of appeals issued a "no-opinion" decision pursuant to Rule 53, a copy of a concise statement of the facts may be either included in the petition or attached to the petition. If a party is not satisfied with the facts stated in the main opinion or the unpublished memorandum of the court of appeals, but the party is satisfied with the facts as stated in a dissent or a special writing by a judge or judges of the court of appeals, the party shall indicate those facts with which the party is in agreement and indicate in which part of the dissent or special writing the facts are found.

(A) Statement of facts where application for rehearing was filed with court of appeals after an opinion or an unpublished memorandum was issued.

(i) If a court of appeals issues an opinion or an unpublished memorandum containing a statement of facts and the party applying for rehearing is not satisfied with that statement, the party applying for rehearing in that court may include in the application an additional or corrected statement of facts or the applicant's own statement of facts. If an applicant is not satisfied with the facts stated in the main opinion or the unpublished memorandum of the court of appeals, but the applicant is satisfied with the facts as stated in a dissent or a special writing by a judge or judges of the court of appeals, the applicant shall indicate those facts with which the applicant is in agreement and indicate in which part of the dissent or special writing the facts are found. If the court of appeals does not include the applicant's statement of facts in a subsequent opinion or memorandum, in order for the Supreme Court to consider those facts in addition to the facts as stated in the court of appeals' opinion or unpublished memorandum, the proposed statement of additional or corrected facts or the applicant's own statement of facts presented to the court of appeals in the application for rehearing must be copied verbatim and attached to or included in the petition for the writ of certiorari, with references to the pertinent portions of the clerk's record and the reporter's transcript.

(ii) If the petitioner proposes his or her own statement of facts, the petitioner must include a verification that this statement of facts is a verbatim copy of the statement presented to the court of appeals in the application for rehearing.

(iii) If the petitioner does not present with the petition an additional or corrected statement of facts or the petitioner's own statement of facts or indicate which part of the dissent or special writing the petitioner agrees with, it will be presumed that the petitioner is satisfied with the facts as stated in the court of appeals' main opinion or unpublished memorandum.

(B) Statement of facts where an application for rehearing was filed with court of appeals in a "no-opinion" decision or an opinion that does not state the facts.

(i) If a court of appeals issues a "no-opinion" affirmance pursuant to Rule 53 or issues an opinion or unpublished memorandum that does not contain a statement of facts, the applicant shall include in the application for rehearing the applicant's statement of facts. If the court of appeals does not include the applicant's statement of facts in a subsequent opinion or memorandum, a verbatim copy of the applicant's statement of facts as presented to the court of appeals must be either included in or presented as an attachment to the petition for the writ of certiorari, with references to the pertinent portions of the clerk's record and the reporter's transcript.

(ii) The petitioner must verify that the statement of facts is a verbatim copy of the statement presented to the court of appeals in the application for rehearing.

(C) Statement of facts where no application for rehearing was filed with the Court of Civil Appeals.

(i) If the petition for a writ of certiorari seeks review of a decision of the Court of Civil Appeals and the petitioner has not filed an application for rehearing with the Court of Civil Appeals, and if the Court of Civil Appeals issues a "no-opinion" affirmance pursuant to Rule 53 or issues an opinion that does not contain a statement of facts, the petitioner shall present to the Supreme Court, either in the petition or as an attachment to the petition for the writ of certiorari, the petitioner's statement of facts, with references to the pertinent portions of the clerk's record and the reporter's transcript. If the Court of Civil Appeals issues an opinion containing a statement of facts and the party petitioning for the writ of certiorari is not satisfied with that statement of facts, the petitioner may present to the Supreme Court, either in the petition or as an attachment to the petition for the writ of certiorari, a proposed additional or corrected statement of facts or the petitioner's own statement of facts, with references to the pertinent portions of the clerk's record and the reporter's transcript. If a petitioner is not satisfied with the facts stated in the main opinion of the Court of Civil Appeals, but the petitioner is satisfied with the facts as stated in a dissent or a special writing by a judge or judges of the Court of Civil Appeals, the petitioner shall indicate those facts with which the petitioner is in agreement and indicate in which part of the dissent or special writing the facts are found.

(ii) If the petitioner does not present with the petition an additional or corrected statement of facts or the petitioner's own statement of facts or indicate which part of the dissent or special writing the petitioner agrees with, it will be presumed that the petitioner is satisfied with the facts as stated in the Court of Civil Appeals' main opinion; and

(6) A direct and concise argument amplifying the grounds relied on for allowance of the writ.

(e) Number of copies of petition; filing and service. Only the original petition, regardless of whether it is filed in the traditional paper format or e-filed pursuant to Rule 57, shall be filed with the clerk of the Supreme Court; one (1) copy shall be filed with the clerk of the appropriate court of appeals; and one (1) copy shall be served on each party to the proceeding in the court of appeals, including those parties not joining in the petition.

(f) Issuance of writ of certiorari. If the Supreme Court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, the Court shall so order, and official notice, in the form of a writ of certiorari, shall be given by the Supreme Court clerk to the parties or their counsel and to the clerk of the appropriate court of appeals. The writ is the official directive of the Supreme Court to the appeals court to deliver the record in the case to the Supreme Court for review. The record and one copy of the briefs and appendices, if any, shall be transmitted to the clerk of the Supreme Court. The order may also include a directive that the parties address only a particular issue or issues in their brief. The case shall stand for submission as herein provided.

(g) Briefing upon issuance of writ.

(1) Petitioner's Brief. If the writ issues, the petitioner may file, within 28 days (4 weeks) -- or, in the case of a pretrial appeal by the state in a criminal case, within 7 days (1 week) -- after the clerk of the Supreme Court has given notice that the writ has been issued either a brief addressing the merits of the case or a waiver of the right to file such brief. The petitioner's brief shall be in a form prescribed by Rules 28 and 32(a), and copies shall be served and filed as prescribed by Rule 31 for the service and filing of briefs. The brief must contain all arguments addressing the substantive issues that the petitioner wishes the court to consider on certiorari review.

(2) Respondent's Brief. The respondent may file, within 21 days (3 weeks) -- or, in the case of a pretrial appeal by the state in a criminal case, within 7 days (1 week) -- a brief in response to the petitioner's brief. The respondent's brief, if any, shall be in a form prescribed by Rules 28 and 32(a), and copies shall be served and filed as prescribed by Rule 31 for the service and filing of briefs. A responsive brief shall address the substantive issues presented for review in the petition or, if issues are limited by the Court in its order granting the petition for writ of certiorari, to those issues stated by the Court. The brief may also address whether the petition complies with the procedural requirement of grounds set forth in subparagraphs (a)(1)(A)-(E) -- or, in a death-penalty case, subparagraphs (a)(2)(A) and (B). If the respondent chooses not to file a brief, the respondent must file a waiver of the right to file such brief.

(3) Petitioner's Reply Brief. The petitioner may file a brief in response to the respondent's brief within 14 days (2 weeks) of the filing of the respondent's brief. The petitioner's reply brief shall be in a form prescribed in Rules 28 and 32(a). The petitioner shall not be permitted to file a reply brief in response to the respondent's brief in a pretrial appeal by the state in a criminal case.

(h) Oral argument. There will be no oral argument on the preliminary examination of a petition for a writ of certiorari. In the event the writ is issued, either party may request oral argument. The request shall be made in briefs as provided in Rules 28(a)(1) and 34(a). The request shall contain a statement of the reasons the Supreme Court should hear oral argument.

(i) Submission. If either party requests oral argument, the clerk of the Supreme Court shall endorse that fact on the proper docket and if, after examining the criteria of Rule 34, the Supreme Court determines that oral argument is necessary, the clerk shall set the case down for oral argument and notify the parties or their attorneys of record in writing that oral argument has been set. If neither party requests oral argument as herein provided, or if the Supreme Court determines that oral argument is unnecessary, the clerk of the Supreme Court shall, when briefs from all parties have been filed with the clerk as herein provided, immediately submit the case upon the record and brief.

(j) Review in Supreme Court of decisions of courts of appeals on petitions for extraordinary writs. A party aggrieved by a decision of a court of appeals on a petition for a writ of mandamus or prohibition or other extraordinary writ is entitled to review in the Supreme Court as provided in Rule 21(e).

(k) Scope of review. The review shall be that generally employed by certiorari and will ordinarily be limited to the facts stated in the opinion of the particular court of appeals, unless the petitioner has attempted to enlarge or modify the statement of facts as provided by Rule 39(d)(5). The scope of review includes the application of the law to the stated facts.

(l) Rehearing. No application for rehearing shall be received in the Supreme Court if the petition for the writ of certiorari is denied, quashed, or stricken. [Amended 10-2-78, eff. 12-1-78; Amended 5-4-81, eff. 5-18-81; Amended 6-2-81, eff. 7-15-81; Amended 2-6-84, eff. 4-1-84; Amended 12-6-88 and 12-13-88, eff. 12-6-88; Amended 9-6-89, eff. 3-1-90; Amended 2-12-90, eff. 3-12-90; Amended 6-12-90, eff. 8-1-90; Amended 8-27-91, eff. 10-1-91; Amended 11-26-91; Amended 11-17-93, eff. 2-1-94; Amended 11-19-96, eff. 1-1-97; Amended eff. 5- 19-2000, as to death-penalty cases and 8-1-2000, as to all other cases; Amended eff. 11-21-2001; Amended eff. 6-1-2002; Amended 1-12-2005, eff. 6-1- 2005; Amended eff. 10-31-2005; Amended eff. 9-15-2008; Amended 5-7-2015, eff 8-1-2015; Amended eff 10-13-2015; Amended 7-24-2020, eff. 10-1-2020; Amended 4-4-2023, eff. 10-2-2023; Amended 10-20-2023, eff. 1-1-2024; Amended 7-2-2025, eff. 10-1-2025.] 1 Ordered August 30, 2000, in the Supreme Court of Alabama: “The order of this court issued on May 19, 2000, amending Rule 39, Alabama Rules of Appellate Procedure, provided in rule 39(a)(2)(E) that the amended rule was effective May 19, 2000, as to death-penalty cases. IT IS ORDERED that that sentence shall be interpreted to mean that Rule 39, as amended, is applicable in death-penalty cases in which the petition for certiorari review was filed in this Court on or after May 19, 2000. “That order further provided that the amendment of Rule 39 was effective August 1, 2000, as to all other cases. IT IS ORDERED that that provision shall be interpreted to mean that Rule 39, as amended, is effective, in non-death-penalty cases, to cases in which the lower appellate court releases its decision on or after August 1, 2000.”

Committee Notes

Committee Comments on 1975 Adoption Rule 39 follows former Supreme Court Rule 39, as amended, except for a few changes. The first changes are in subdivision (c). In (c)(1), provision is made for the review of any decision which, for the first time, determines whether the ordinance, statute, etc., is valid or invalid. Subdivision (c)(4) is the same as in former Rule 39(4) except that in a few instances a conflict will appear in a court of appeals opinion with one of its own prior opinions which was not cited or discussed. Ordinarily, this could be corrected on application for rehearing, but, if not, the ground would support a petition for certiorari. Subdivision (c)(5) is new. The courts of appeals, by statute, Cod of Ala., §12-3-16, are governed by the decisions of the Supreme Court, and it is difficult to get a proper ground for certiorari when possibly the weight of authority is contrary to the Alabama position. Subdivision (c)(5) would permit a court of appeals to follow the decision of the Supreme Court but still to invite this court to take another look at the question. The provision in (c) relating to the death penalty was included because of the present state of the law as to that question resulting from the holding in Furman v. Georgia, 408 U.S. 238. The same reasoning applies to Rule 8(c)(1). The mere fact that petitioner alleges one or more of the grounds listed in (c)(1)—(5) does not mean that, as a matter of right, the writ will be granted. The writ will still be denied if, in the court’s opinion, (1) the validity has already been decided correctly, (2) the decision does not affect the officers, (3) the case is not one of first impression, (4) there is no material conflict with prior decisions, or (5) the controlling cases should not be overruled. Permissible language for stating the grounds is suggested in Stallworth v. State, 285 Ala. 72, 229 So.2d 27. Only one set of briefs is required of each party, and the respondent has the choice of filing his bri