Time for Raising Federal Issue

A federal issue must be presented to the state court before it is raised in the U.S. Supreme Court.  However, there is no rule to the effect that the federal question must be brought before the state trial court before the federal question is raised in state appellate court.  When the state court actually considers and decides on a federal question, the U.S. Supreme Court is not concerned with when and how it is raised in the state court.  However, such procedural grounds of decision in state courts may bar further review in U.S. Supreme Court.

A cognizable claim must be asserted at the proper time and in the proper manner.  A claim must be raised by a pleading, a motion or other appropriate action under the state system of pleading and practice.[i] It is not essential that the federal question be raised in the pleading itself.  The federal question can also be raised in the course of trial.  When the federal question is raised in the course of a trial, it is to be informed specifically to the court.  Additionally, federal question can be raised in post trial stages.  Accordingly, a federal question can be raised in a petition for a new trial or in a petition for setting aside a judgment.  When a federal question is raised in a post trial stage, it is to be assured that state practice does not prohibit the raising of federal question in a later stage.  To give the U.S. Supreme Court jurisdiction on the ground of denial by a state court of any title, right, privilege, or immunity claimed under the U.S. Constitution or any treaty or statute of the U.S., it must appear on record that such title, right, privilege, or immunity was specially set up or claimed at the proper time in the proper way. To be reviewable by the U.S. Supreme Court, the decision must be against the right specifically set up or claimed.[ii]

Usually, when a federal question is raised for the first time in a petition for rehearing, after judgment, it is considered to be too late.[iii] However, a federal question can be raised in a motion for rehearing under the following circumstances:

  • When the federal question has first arisen unexpectedly in that court’s opinion.
  • When the state court grants rehearing and determines the federal issue; or
  • When a federal issue has been raised as soon the petitioner knew of the fact.

[i] Atlantic C. L. R. Co. v. Mims, 242 U.S. 532 (U.S. 1917)

[ii] Brooks v. Missouri, 124 U.S. 394 (U.S. 1888)

[iii] Prensa Insular De Puerto Rico, Inc. v. Puerto Rico, 189 F.2d 1019 (1st Cir. P.R. 1951)


Inside Time for Raising Federal Issue