What are the different kinds of appeals? What is an appeal of right, or a discretionary appeal? What’s the difference between “direct” and “collateral” appeals?

An appeal occurs when a higher court reviews the decision of a lower court and either affirms that decision, leaving it to stand, or reverses, changing that decision.  Depending on the circumstances of the case and the procedure by which a case came to the appeals courts, however, the appeal may be one or more of several different kinds.  The most commonly-used descriptions of appeals are appeals “as of right” versus “discretionary” appeals, and “direct” appeal versus “collateral” appeal.

Appeal As of Right/Discretionary Appeal

All appeals, whether they are from civil trials like personal injury cases, or criminal trials, are either an appeal “as of right” or a “discretionary” appeal.  In most U.S. states, the first appeal from a decision made by a trial court is always an appeal “as of right.”  In other words, most state laws mandate that an appeals court hear any appeal coming directly from a trial court’s decision.  The party making the appeal may have to file a petition to appeal or a similar document, but when the appeal is “as of right,” this step is understood as creating notice to the court that the party will file the appeal, rather than a request that the court can choose to grant or deny.

In many states, any appeal of a trial court’s decision is an appeal “as of right,” even if the appeal only addresses one narrow issue and not the entire case.  Both the plaintiff and the defendant in the case may appeal one or more issues “as of right.”

The “flip side” of the appeal as of right is a discretionary appeal.  Parties do not have a legal right to a discretionary appeal; instead, the appeals court can choose whether or not to allow the appealing party to bring its case to the appeals court.  In most U.S. states, appeals to the state’s highest court are almost always discretionary.  Appeals made to the U.S. Supreme Court are also discretionary – the Court can, and does, pick and choose which cases it will hear each year.  A discretionary appeal to the U.S. Supreme Court is made by filing a writ of certiorari, or “cert.”

Direct Appeals versus Collateral Appeals

Unlike appeals as of right versus discretionary appeals, whether an appeal is “direct” or “collateral” does not come up in many civil cases.  The area of law in which this distinction matters most is habeas corpus law, which involves challenges against convictions made in criminal trials.

In a criminal case, a “direct” appeal is an appeal of the criminal verdict made directly from the trial court to the state or federal court of appeals and/or from the court of appeals to a higher court.  Just like in civil cases, the first appeal of a criminal conviction is “as of right” in most courts, while appeals after the first, including appeals to the state’s highest court, are “discretionary.”

People seeking to appeal their criminal convictions must attempt to receive every kind of direct appeal before beginning the process of “collateral” appeal, also known as “collateral review.”  However, a person appealing a criminal conviction may start the collateral review process even if a discretionary appeal has been turned down.  For instance, a person who asks the state supreme court for a discretionary appeal may start a collateral appeal even if the state supreme court refuses to hear his case.

“Collateral appeal” begins when a person convicted of a crime under state law files a habeas corpus petition in a federal district court.  Although habeas corpus petitions ask for a review of a criminal conviction, they are actually civil law cases, and they are governed by the rules of civil trial procedure and appellate procedure.

Collateral appeals are nearly always discretionary, but a judge deciding whether or not to grant a collateral appeal request must follow strict rules.  The rules governing when someone can file a federal habeas corpus petition appear in the Antiterrorism and Effective Death Penalty Act, or AEDPA.  AEDPA only applies to parties seeking to appeal a criminal conviction, however; it does not apply to parties seeking to appeal a civil verdict, even if that verdict was originally reached in a state court.

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