Preserving an Appeal to US Supreme Court

The United States Supreme Court recently denied certiorari in Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011) – a case that I won in the South Carolina Supreme Court. While there were many reasons to deny certiorari, Reeves’s failure to properly preserve the issues for appeal likely played a large role.

Roe v. Reeves involves an unwed birth father’s attempt to veto the child’s adoption by an unrelated couple. The South Carolina Supreme Court  – applying a state statute – held that  the birth father’s consent to the adoption was unnecessary. Reeves petitioned the United States Supreme Court to review whether the state statute violated his federal constitutional rights to due process and equal protection. He had, however, never raised these federal claims in the South Carolina courts.

The United States Supreme Court’s ability to review a state-court decision is governed by 28 U.S.C. 1257(a). It requires in part that the federal right be “specifically set up or claimed” within the state court. The United States Supreme Court thus almost always refuses to consider appeals involving federal claims that were neither addressed by nor properly presented to the state court that rendered the decision that it is being asked to review. Howell v. Mississippi, 543 U.S. 440, 443 (2005)(per curiam).

The Court has issued mixed views on whether this prohibition is jurisdictional. The policy against review is nevertheless so strong that the Court’s rules require state-court petitioners to pin-point when and how the questions presented were earlier raised in the state court and how the state court handled the federal issues. Rule 14(g)(i), United States Supreme Court.

Has anyone else caught opposing counsel trying to raise new issues in the United States Supreme Court? We would love to hear from you. You can reach me through the comment box or at





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