Capital Representation

When a 28 U.S.C. § 2254 or 2255 petition is filed in district court and a sentence of death is involved, counsel must file a statement identifying the emergency nature of the proceedings and any proposed date of execution, among other information. The clerk of the district court must immediately forward the statement to the court of appeals. In cases in which an execution date has been set, counsel shall lodge with the clerk of the court of appeals all district court documents as they are filed and any pertinent state court materials. If an execution date is imminent, counsel may also lodge proposed appellate papers in anticipation of having to seek emergency appellate relief.

• Fed. R. App. P. 22 and Local Rules
• Certificate of Death Penalty Case

The position of capital case coordinator is established in the clerk's office for the purpose of coordinating with district court personnel and counsel in connection with capital cases. If an execution date has been set, a panel of three judges is promptly identified to consider all matters related to the case. An expedited briefing schedule is set when necessary to allow the court to review all issues presented.

• Fed. R. App. P. 22 and Local Rules

If the attorneys appointed on appeal anticipate that their combined time will exceed 300 hours on the appeal or 100 additional hours at the certiorari stage, they must file a proposed, ex parte budget within 21 days after appointment. If, during the representation, the attorneys believe that additional time is required, they must promptly submit a request for approval of additional hours.

• Capital Budgeting and Payment

If the district court denied a certificate of appealability in a 28 U.S.C. § 2254 or 2255 case, this court issues a preliminary briefing order requiring the filing of an opening brief and appendix only. The appellant should request a certificate of appealability from this court, either in the opening brief or by separate motion. If the court denies a certificate of appealability, the case is dismissed without requiring a response brief. If the court grants a certificate of appealability, a final briefing order is issued requiring a response brief and providing for a reply brief. The case is tentatively calendared for oral argument at the next available argument session.

• Fed. R. App. P. 22 and Local Rules

Once the court's mandate has issued in a death penalty case, any petition for panel or en banc rehearing should be accompanied by a motion to recall the mandate and motion to stay the execution. Generally, the court will not stay an execution solely to allow for additional time for preparation and consideration of a petition for rehearing. Therefore, counsel should take all possible steps to file a petition sufficiently in advance of the scheduled execution to allow it to be considered by the court. Counsel should notify the clerk's office of their intention to file a petition for rehearing so that arrangements can be made to secure its expeditious consideration.

• Fed. R. App. P. 22 and Local Rules