Circuit Rule 22-4: Appeals from Authorized Second or Successive 2254 Petitions or 2255 Motions in Capital Cases

This rule applies to appellate proceedings involving the denial of any authorized second or successive (“SOS”) section 2254 petition or 2255 motion in capital proceedings. If the district court has denied in full an application for a COA for such an appeal, appellant shall file with the court of appeals a request for a COA. Circuit Rule 22-1 shall apply to the extent not inconsistent with this rule. (Rev. 12/1/18)

(a) Necessary Documents. An appellant challenging the denial of an authorized SOS petition or motion and filing a request for a certificate of appealability and/or a stay of execution, shall file with the court of appeals the following documents in an attachment to any COA request:

(1) the original application for permission to file a second or successive section 2254 petition or 2255 motion (“SOS petition”) 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 all relevant state or federal court opinions or judgments or, if there are no written opinions or judgments, a copy of the relevant portions of the transcripts; and

(5) a copy of the notice of appeal.

If all documents referred to in this provision are not filed, appellant shall state why the documents are unavailable and where they may be obtained. If appellant does not provide the documents, appellee shall provide them or state in any response why they are not available. (Rev. 12/1/09; 12/1/18)

(b) Emergency Motions. When the district court has denied an authorized SOS petition or motion and an execution is scheduled and imminent, counsel shall adhere to Circuit Rule 27-3 regarding emergency motions, except to the extent that it may be inconsistent with these rules. Any such motion will be presented to the panel assigned to the case pursuant to Circuit Rule 22-2. (New 12/1/09; Rev. 12/1/18)

(c) COA Applications. Where the district court has denied an authorized SOS petition or motion and denied a COA in full, the Clerk shall refer the motion for a COA to the death penalty panel. Oral argument may be held at the request of any member of the panel. Any member of the panel may grant a COA. If the panel votes unanimously to deny a COA in full, it shall enter an order setting forth the issues presented and the reasons why a COA should not issue. A copy of the order shall be circulated by the Clerk to all judges. (New 12/1/09; Rev. 12/1/18)

(d) En Banc Review. 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. 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. 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 identify the members of the en banc court. (New 12/1/09)

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. (New 12/1/09)

(e) Stays of Execution. Where appellant seeks a stay of execution, any motion for stay of execution shall be filed electronically, and the Clerk shall refer any such motion to the death penalty panel. 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. (New 12/1/09; Rev. 12/1/18)

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. (New 12/1/09)

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 either to 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 unless granted by the full court. (New 12/1/09)

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. (New 12/1/09; Rev. 12/1/18)

If the relief sought was available in the district court, the motion shall state whether all grounds advanced in support thereof in the court of appeals 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. (New 12/1/09; Rev. 12/1/18)

Circuit Advisory Committee Note to Rule 22-4

If a prisoner has been previously 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 not apply. Such a petition or motion will be assigned to the same panel to which the initial petition or motion was assigned. (Rev. 12/1/09; 12/1/18)