Local Rule RULE 8.2: RULE ON POST-CONVICTION PROCEEDINGS IN CAPITAL PUNISHMENT CASES PURSUANT TO 28 U.S.C. SECTIONS 2254 AND 2255

RULE 8.2 RULE ON POST-CONVICTION PROCEEDINGS IN CAPITAL PUNISHMENT CASES PURSUANT TO 28 U.S.C. SECTIONS 2254 AND 2255

(A) Operation, Scope, and Priority.

(1) This rule applies to post-conviction proceedings in all cases involving persons under sentence of capital punishment.

(2) The judge to whom a case is assigned will handle all matters pertaining to the case, including certificates of appealability, stays of execution, consideration of the merits, second or successive petitions when authorized by the court of appeals under 28 U.S.C. §§ 2244(b)(3), 2255(h), remands from the court of appeals or Supreme Court of the United States, and associated procedural matters. This rule does not limit a district judge's discretion to designate a magistrate judge, under 28 U.S.C. § 636, to perform appropriate tasks. An emergency judge may act when the designated district judge is unavailable.

(3) The judge must give priority to cases within the scope of this rule, using the time limitations in 28 U.S.C. § 2266(b) as guidelines when the section is not directly applicable.

(4) The judge may make changes in the procedures established by this rule when justice so requires.

(B) Notices and Required Documents.

(1) A petition or motion within the scope of this rule must:

(a) Include all possible grounds for relief;

(b) Inform the court of the execution date, if one has been set; and

(c) In an action under 28 U.S.C. § 2254, inform the court how each issue raised was presented to the state tribunal and, if it was not presented, why the contention nonetheless should be treated as (i) exhausted, and (ii) not forfeited.

(2) As soon as a case is assigned to a judge, the district clerk must notify by telephone the judge, counsel for the parties, and the representatives designated under the next subsection. The district clerk also must inform counsel of the appropriate procedures and telephone numbers for emergency after-hours motions.

(3) The Attorneys General of states with persons under sentence of death, and the United States Attorneys of districts with persons under sentence of death, must designate representatives to receive notices in capital cases in addition to, or in lieu of, the government's assigned counsel, and must keep the court informed about the office and home telephone numbers of the designated representatives.

(4) The district clerk must notify the circuit clerk of the filing of a case within the scope of this rule, of any substantial development in the case, and of the filing of a notice of appeal. In all cases within the scope of this rule, the district court clerk must immediately transmit the record to the court of appeals following the filing of a notice of appeal. A supplemental record may be sent later if items are not currently available.

(5) Promptly after the filing of a case within the scope of this rule, the district clerk must furnish to petitioner or movant a copy of this rule, together with copies of Federal Rule of Appellate Procedure 22, and Seventh Circuit Rules 22 and 22.2.

(6) In all cases within the scope of this rule, the petitioner or movant must file, within 14 days after filing the petition or motion, legible copies of the documents listed below. If a required document is not filed, the petitioner or movant must explain the omission.

(a) Copies of all state or federal court opinions, memorandum decisions, orders, transcripts of oral statements of reasons, and judgments involving any issue presented by the petition or motion, whether these decisions or opinions were rendered by trial or appellate courts, on direct or collateral review. If a decision or opinion has been published, a citation may be supplied in lieu of a copy.

(b) Copies of prior petitions or motions filed in state or federal court challenging the same conviction or sentence.

(c) If a prior petition has been filed in federal court, either (i) a copy of the court of appeals' order under 28 U.S.C. § 2244(b)(3) or § 2255(h) permitting a second or successive collateral attack, or (ii) an explanation of why prior approval of the court of appeals is not required.

(d) Any other documents that the judge requests.

(C) Preliminary Consideration.

(1) The district judge will promptly examine a petition or motion within the scope of this rule and, if appropriate, order the respondent to file an answer or other pleading or take such other action as the judge deems appropriate.

(2) If the judge determines that the petition or motion is a second or successive collateral attack for which prior approval of the court of appeals was required but not obtained, the judge will immediately dismiss the case for want of jurisdiction.

(3) If the court of appeals granted leave to file a second or successive collateral attack, the district judge must promptly determine in writing whether the criteria of 28 U.S.C. § 2244(b)(4) have been satisfied.

(D) Appointment of Counsel.

Pursuant to 28 U.S.C. § 2255(g), counsel will be appointed for any person under a sentence of death who is financially unable to obtain representation, requests that counsel be appointed, and does not already have counsel appointed by a state under 28 U.S.C. § 2261.

(E) Stay of Execution.

(1) A stay of execution is granted automatically in some cases, and forbidden in others, by 28 U.S.C. § 2262. All requests with respect to stays of execution over which the court possesses discretion, or in which any party contends that § 2262 has not been followed, must be made by motion under this rule.

(2) Parties must endeavor to file motions with the court in writing and during normal business hours. Parties having emergency motions during nonbusiness hours must proceed as instructed under part (b)(2).

(3) A motion must be accompanied by legible copies of the documents required by part (b)(6), unless these documents have already been filed with the court or the movant supplies a reason for their omission. If the reason is lack of time to obtain or file the documents, then the movant must furnish them as soon as possible thereafter.

(4) If the attorney for the government has no objection to the motion for stay, the court must enter an order staying the execution.

(5) If the district judge concludes that an initial petition or motion is not frivolous, a stay of execution must be granted.

(6) An order granting or denying a stay of execution must be accompanied by a statement of the reasons for the decision.

(7) If the district court denies relief on the merits and an appeal is taken, then:

(a) if the judge denies a certificate of appealability, any previously issued stay must be vacated, and no new stay of execution may be entered; but

(b) if the judge issues a certificate of appealability, a stay of execution pending appeal must be granted.

(F) Clerk's List of Cases.

The Clerk will maintain a list of cases within the scope of this rule.