Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 22
HABEAS CORPUS AND SECTION 2255 PROCEEDINGS
(a) Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court. If a district court denies an application made or transferred to it, renewal of the application before a circuit judge is not permitted. The applicant may, under 28 U.S.C. § 2253, appeal to the court of appeals from the district court's order denying the application.
(b) Certificate of Appealability.
(1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. The district clerk must send the certificate or statement to the court of appeals with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.
(2) A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court prescribes. If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.
(3) A certificate of appealability is not required when a state or its representative or the United States or its representative appeals.
CERTIFICATE OF APPEALABILITY; CAPITAL AND NONCAPITAL CASES
(a) General Procedures. The procedures set forth in Fed. R. App. P. 22(b) shall apply to requests for certificates of appealability in proceedings under 28 U.S.C. §§ 2254 and 2255. A certificate of appealability must first be considered by the district court. If the district court grants a certificate of appealability, it shall state which issue(s) satisfy the standard set forth in 28 U.S.C. § 2253(c)(2). The Court of Appeals will not act on a request for a certificate of appealability if the district court has not first ruled on the request.
(b) District Court Records. If the district court denies a certificate of appealability in a section 2254 proceeding, the district court clerk shall forward the entire record to the court of appeals. If the district court denies a certificate of appealability in a section 2255 proceeding, the district court clerk shall forward that portion of the record beginning with the filing of the section 2255 motion.
(c) Denial In Full By District Court; Motion By Petitioner. If the district court denies a certificate of appealability as to all issues, petitioner may, within thirty-five days of the district court’s entry of its order denying a certificate of appealability, file in the court of appeals a motion for a certificate of appealability along with a statement of reasons why a certificate should issue as to any issue(s). If no motion for a certificate of appealability is filed, the court of appeals will deem the notice of appeal to constitute a request for a certificate of appealability. In either case, the respondent may file a response within thirty-five days of the notice of appeal or motion, whichever is later. In capital cases where an execution date is scheduled and no stay is in place, respondent shall file a response as soon as practicable after the date petitioner’s motion is served or, if no motion is filed, as soon as practicable after the district court’s entry of its order denying a certificate of appealability.
(d) Partial Denial By District Court; Motion By Petitioner. If the district court denies a certificate of appealability in part, the court of appeals will not consider uncertified issues unless petitioner first seeks, and the court of appeals grants, broader certification. Petitioners desiring broader certification must file, in the court of appeals, a separate motion for broader certification, along with a statement of reasons why a certificate should be granted as to any issues(s) within thirty-five days of the district court’s entry of its order denying a certificate of appealability. Respondent may file an opposition within thirty-five days of the date petitioner’s motion is served. If a motion for broader certification is filed in a capital case where an execution date is scheduled and no stay is in place, respondent shall file a response as soon as practicable after service of the motion. Otherwise, respondent shall file a response within thirty-five days of the date petitioner’s motion is served.
ADVISORY COMMITTEE NOTE TO CIRCUIT RULE 22-1
Motions for broader certification will be decided by motions panels. To the extent a party wishes to ask the merits panel to broaden the scope of the appeal beyond what was allowed by a motions panel of this court, such a motion and any response may be filed in the court of appeals promptly after the completion of briefing. In capital cases it is the practice of the motions panel after ruling on the request to forward automatically all papers relating to the motion to the panel ultimately assigned to consider the merits of the appeal for such consideration as that panel deems appropriate.
DIRECT CRIMINAL APPEALS, FIRST PETITIONS,
AND STAYS OF EXECUTION: CAPITAL CASES
(a) Assignment. In direct criminal appeals and section 2241, section 2254, and section 2255 appeals which involve judgments of death and finally dispose of the case, the Clerk, upon the completion of briefing, will assign the appeal to a death penalty panel composed of active judges and senior judges willing to serve on death penalty panels. The names of the panel members will be disclosed one week prior to the court calendar week. However, when an execution is scheduled and no stay is in place, the Clerk may select a panel to hear the appeal and any emergency motion whenever in the Clerk’s discretion it would be prudent to do so. Petitions for extraordinary writs and appeals from district court orders which do not finally dispose of the case will be presented initially to a motions panel.
(b) Related Civil Proceedings. The court may apply the provisions of Circuit Rule 22 to any related civil proceedings challenging an execution as being in violation of federal law, including proceedings filed by the prisoner or someone else on his or her behalf.
(c) Duties. Once a case is assigned to a death penalty panel, the panel will handle all matters pertaining to the case, including motions for leave to file a subsequent petition, appeals from authorized subsequent petitions, any related civil proceedings, and remands from the Supreme Court of the United States. When a case is pending before a death penalty en banc court, any additional applications for relief pertaining to that case will be assigned to the panel with responsibility for that case, unless the question presented is such that its decision would resolve an issue then before the en banc court, in which event the additional application will be assigned to the en banc court. The determination as to whether the case is assigned to the panel or the en banc court is made by the Chief Judge in consultation with the concerned panel and the en banc court.
(d) The En Banc Court. The Clerk shall include in the pool of the names of all active judges, the names of those eligible senior judges willing to serve on the en banc court. An eligible senior judge is one who sat on the panel whose decision is subject to review. Judges shall be assigned by random drawing from the pool, and in accordance with Ninth Cir. R. 35-3. Review by the en banc court may include not only orders granting or denying applications for a certificate of appealability and motions to stay or vacate a stay of execution, but may extend to all other issues on appeal.
(e) Stays of Execution. Counsel shall communicate with the Clerk of this court by telephone as soon as it becomes evident that emergency relief will be sought from this court. Any motion for a stay of execution filed before a case has been assigned to a death penalty panel will be presented for decision to a motions panel. Once a death penalty panel has been assigned, that panel then must decide all subsequent matters (unless the case is then before the en banc court).
If a motion for a stay of execution is presented to a judge of this court not on the death penalty panel rather than to the Clerk of the Court of Appeals, that judge shall refer the motion to the Clerk, unless the execution is imminent. If an execution is imminent and the death penalty panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action. By majority vote, the panel may vacate such a stay of execution.
A motion for stay of execution shall state whether relief was sought in the district court and, if so, whether all grounds advanced in support thereof in this court were submitted to the district court and if not, why the matter should not be remanded to the district court or relief denied for that reason. If a majority of the panel votes to deny the stay, it shall enter an order to that effect and, unless impracticable, state the issues presented and the reasons for the denial. If no execution date is set, the ordinary rules for obtaining en banc review of a three-judge panel decision shall apply on a first petition or motion.
When the panel affirms a denial or reverses a grant of a first petition or motion, it shall enter an order staying the mandate pursuant to Fed. R. App. P. 41(b). If the panel affirms the denial of a first 2254 petition or 2255 motion in a capital case and denies a stay of execution, any judge of the court may request en banc rehearing and issue a temporary stay of execution.
APPLICATIONS FOR LEAVE TO FILE SECOND OR SUCCESSIVE 2254 PETITION OR 2255 MOTION - ALL CASES; STAY OF EXECUTION - CAPITAL CASES
(a) Applications. Any petitioner seeking leave to file a second or successive 2254 petition or 2255 motion in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. §§ 2244 or 2255. An original and five copies of the application must be filed with the Clerk of the Court of Appeals. No filing fee is required. If a second or successive petition or motion, or an application for leave to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.
The application must:
(1) include a copy of the second or successive 2254 petition or 2255 motion which the applicant seeks to file in the district court; and
(2) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and
(3) state how the requirements of sections 2244(b) or 2255 have been satisfied.
(b) Excerpts of Record. If reasonably available to the petitioner, the application must include copies of all relevant state court orders and decisions and all dispositive district court orders in prior federal proceedings. If excerpts of record filed by petitioner are incomplete, respondent may file a supplemental excerpt of record.
(c) Service. The petitioner must serve a copy of the application and all attachments on the respondent, and must attach a certificate of service to the application filed with the court.
(d) Response. In noncapital cases, no response is required unless ordered by the court. In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental excerpts as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental excerpts within seven (7) calendar days of the date the application is served.
(e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the court will grant or deny the application, and state its reasons therefore, as soon as practicable.
(f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel as soon as practicable. If the court grants leave to file a second or successive application, the court shall stay petitioner’s execution pending disposition of the second or successive petition by the district court.
APPEALS FROM AUTHORIZED SECOND OR
SUCCESSIVE 2254 PETITIONS OR 2255 MOTIONS
This rule applies to appellate proceedings involving any authorized second or successive section 2254 petition or 2255 motion.
(a) Necessary Documents. If the district court denies an application for a certificate of appealability and/or a stay of execution, and the petitioner seeks relief from the court of appeals, petitioner shall, if he has not already done so, file with the Clerk of the Court of Appeals fifty copies (capital cases) or four copies (noncapital cases) of the following documents:
(1) the original application for a certificate of appealability and/or a motion for stay of execution;
(2) all papers filed in the subsequent proceeding in district court;
(3) all orders issued by the district court in the subsequent proceeding;
(4) a copy of any state or federal court opinion or judgment or, if there is no written opinion or judgment, a copy of the relevant portions of the transcript; and
(5) a copy of the notice of appeal.
If all documents referred to in this provision are not filed with the motion for stay of execution or application for a certificate of appealability, the motion shall state why the documents are unavailable and where they may be obtained. If the applicant does not provide the documents, the respondent shall provide them or state in any response why they are not available.
(b) En Banc Review; Notification In Capital Cases. If an execution date is scheduled and imminent, the Clerk shall notify the parties when a request for rehearing en banc is made and of the time frame for voting or, if no such request has been made, the Clerk shall notify the parties upon expiration of the period to request en banc rehearing. Such a request for rehearing en banc shall result in en banc review if a majority of active judges votes in favor of en banc review. If a majority of active judges votes in favor of en banc review, the Clerk shall notify the parties that the matter will receive en banc review, and identify the members of the en banc court.
(c) Stays of Execution. If the panel denies a stay of execution upon an appeal from an authorized subsequent section 2254 petition or 2255 motion in a capital case, and the execution date is scheduled and no stay is in place, any judge of the court who requests en banc review may issue a temporary stay of execution. If a majority of active judges does not vote in favor of en banc review, the court shall enter an order vacating the temporary stay.
If the matter receives en banc review, the stay shall remain in effect until the en banc court completes voting on the question of a stay. Voting is complete when all judges on the en banc court have been polled and a majority has voted either to grant or deny a stay. If, at the completion of voting, a majority of the en banc court votes to deny a stay, the en banc court will enter an order vacating the temporary stay and no stay will be in effect unless granted by the full court.
CIRCUIT ADVISORY COMMITTEE NOTE TO CIRCUIT RULE 22-4
If a prisoner has been granted relief, in whole or in part, a petition or motion challenging a subsequent conviction or sentence shall be considered as a "first petition" or "first motion" and this rule shall apply rather than Rule 22-5. Such a petition or motion will be assigned to the same panel to which the initial petition or motion was assigned.
SUBSEQUENT PETITIONS OR MOTIONS; RELATED CIVIL PROCEEDINGS
(a) Definitions: This rule shall apply to appellate proceedings involving any subsequent petition for a writ of habeas corpus or motion for relief under sec. 2255 filed after the district court has entered judgment denying a first petition or first motion, and any amendments thereto, and to any related civil proceeding (including such a petition filed or proceeding initiated by someone other than the prisoner) with respect to the same conviction and sentence in which an execution is currently scheduled. This rule shall also apply to appeals of a petition for habeas corpus or a motion for relief under sec. 2255 that have been dismissed by the district court for lack of jurisdiction.
(b) Records of Other Proceedings. Upon the filing in the district court of a subsequent petition for habeas corpus or motion for relief under sec. 2255 or a related civil proceeding in a case in which an execution has been scheduled, the prisoner shall lodge forty copies of such pleading with the Clerk of the Court of Appeals.
(c) Stays of Execution and Certificates of Probable Cause. If the district court denies an application for a certificate of probable cause and/or a motion for a stay of execution of a sentence of death, the prisoner shall file with the Clerk of the Court of Appeals an original and forty copies of the application for a certificate of probable cause in a proceeding pursuant to 28 U.S.C. sec. 2254 and the motion for stay of execution, accompanied by forty copies of the following documents:
(1) the complaint or petition or motion to the district court;
(2) each brief or memorandum of points and authorities filed in the district court that is pertinent to the complaint or petition or motion;
(3) the district court's disposition, including any reasons set forth by the district court in its order;
(4) the application to the district court for a stay;
(5) the district court order granting or denying a stay pending appeal, and the statement of reasons for its action;
(6) the order granting or denying a certificate of probable cause;
(7) a copy of any state or federal court opinion or judgment in the case or, if there is no written opinion or judgment, a copy of the relevant portions of the transcript; and
(8) a copy of the notice of appeal.
The clerk will notify all judges by the most expeditious means of the filing of an application for a certificate of probable cause and/or a stay of execution.
(d) Motions for Stays of Execution - Procedures.
(1) If all documents referred to in subdivision (c) of this rule are not filed with the motion for stay of execution or application for certificate of probable cause, the motion shall state why the documents are unavailable and where they may be obtained. If the applicant does not provide the documents, the respondent shall provide them or state in any response to the motion for stay of execution why they are not available.
(2) Counsel shall adhere to Circuit Rule 27-3 regarding emergency motions, except to the extent that it may be inconsistent with these rules.
(3) In a state death penalty case, an application for a certificate of probable cause may be granted by any judge of the court; however, the application should first be presented to the collateral death penalty panel. Oral argument may be held at the request of any member of the panel. Any member of the panel may enter an order granting the application for a certificate of probable cause. If the panel votes unanimously to deny the application, it shall enter an order setting forth the issues presented and the reasons why the certificate of probable cause should not issue.
(4) A motion for a stay of execution shall be presented to the panel hearing the case. Oral argument may be held at the request of any member of the panel. If a majority of the panel votes to deny the stay, it shall enter an order setting forth the issues presented and the reasons for the denial.
(5) If a motion for a stay of execution is presented to a judge of this court not on the panel rather than to the Clerk of the Court of Appeals, that judge shall refer the motion to the clerk for determination by the panel, unless the execution is imminent. If an execution is imminent and the panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge of the court may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the clerk and the panel of such action. By majority vote the panel may vacate such a stay of execution.
(6) If a motion for a stay of execution is presented to a judge of this court not on the panel, counsel presenting such motion shall include in the materials presented a declaration that shall reflect:
(a) why the motion is being presented to a single judge instead of the Clerk of the Court of Appeals for reference to the panel;
(b) the name of any other judge to whom the motion has been presented, including any district judge, and the date when such application was made, and any ruling on the motion;
(c) what petitions, applications, motions and appeals are then pending before this court in any case involving the same prisoner, together with a report of the status of each such proceeding.
Before presenting such a motion to a single judge, the applicant shall make every practicable effort to notify the clerk and opposing counsel and to serve the motion at the earliest possible time. A certificate of counsel for the applicant shall follow the cover page of the motion and shall contain:
(i) the telephone numbers and office addresses of the attorneys for the parties;
(ii) facts showing the existence and nature of the claimed emergency; and
(iii) when and how counsel for the other parties were notified and served with the motion, or, if not notified and served, why that was not done.
If the relief sought was available in the district court, the motion shall state whether all grounds advanced in support thereof in this court were submitted to the district court, and, if not, why the matter should not be remanded to the district court or the relief denied for that reason.
(e) En Banc Procedures Regarding Certificates of Probable Cause and Stays of Execution.
(1) Immediately upon entry of an order granting or denying a certificate of probable cause or a stay of execution, a copy of the order, as well as notice of the scheduled date and time of execution shall be sent by the most expeditious method practicable to the en banc court and all other active judges.
(2) Any active or senior judge of the court may request that the en banc court review the panel's order. The request shall be supported by a statement setting forth the requesting judge's reasons why the order should be vacated. The clerk shall notify the parties when such a request is made and of the time frame for voting. If no such request has been made, the clerk shall notify the parties upon the expiration of the period to request en banc rehearing. Such a request for rehearing
en banc shall result in en banc review if a majority of active judges has voted in favor of en banc review. A judge's failure to vote within the time established by General Order 5.5(b) shall be considered a "yes" vote in favor of en banc review. The en banc coordinator, if time permits, may set a schedule in which other judges may respond to the points made in the request for en banc review. If a majority of active judges votes in favor of en banc review, the clerk shall notify the parties that the matter will receive en banc review, and will identify the members of the en banc court.
(3) If the panel denies a stay of execution, and the execution date is imminent, any judge of the court who requests en banc review may issue a temporary stay of execution. That stay shall lapse and be dissolved if a majority of active judges does not vote in favor of en banc review. A judge’s failure to vote within the time established by General Order 5.5(b) shall be considered a "yes" vote in favor of en banc review. If the matter receives en banc review, the stay shall remain in effect until the en banc court completes voting on the question of granting a stay. Voting is complete when all available judges have been polled and a majority of the en banc court has voted to either grant or deny a stay. If at the completion of voting, a majority of the en banc court has not voted to grant the stay, there will be no stay in effect.
(4) Any active judge may request a rehearing of the decision of the en banc court by all the active judges of the court. If no stay is in effect, such judge may issue a temporary stay. The eleven-judge en banc court by majority vote may vacate such a temporary stay, and in that event there will be no stay in effect unless a stay is granted by the full court.
Cross Reference: Advisory Committee Note to Circuit Rule 22-4.
RULES APPLICABLE TO ALL DEATH PENALTY CASES
(a) Notice of Emergency Motions: Upon the filing of a notice of appeal where the district court has denied a stay of execution, the clerk of the district court shall immediately notify the clerk of this court by telephone of such filing and transmit copies of the notice of appeal and the district court docket by the most expeditious method consistent with the proximity of the execution date. Counsel shall communicate with the clerk of this court by telephone as soon as it becomes evident that emergency relief will be sought from this court.
(b) [abrogated, see Circuit Rule 32-4 (1/1/99)]
(c) Excerpts of Record. The appellant shall prepare and file excerpts of record in compliance with Circuit Rule 30-1. An appellant unable to obtain all or part of the record shall so notify the court. In addition to the documents listed in Circuit Rule 30-1.2, excerpts of record shall contain all final orders and rulings of all state courts in appellate and post-conviction proceedings. Excerpts of records shall also include all final orders of the Supreme Court of the United States involving the conviction or sentence.
(d) Retention of Record. The clerk shall keep all papers filed in the Court of Appeals for future use of the court.