6 Cir. R. 22: Habeas Corpus and Section 2255 Proceedings — Second or Successive Applications — Death Penalty Cases

(a) Certificate of Appealability. A party seeking a certificate of appealability from this court must do so as soon as possible after the filing of the notice of appeal.

(b) Motion to File a Second or Successive Application Under 28 U.S.C. § 2254 or § 2255.

(1) Scope. This subrule (b) applies to motions in this court for authorization to file a second or successive application in the district court under 28 U.S.C. § 2254 or § 2255.

(2) Motion.

(A) Information Sheet. The clerk will provide an information sheet and motion form for an applicant who advises that he or she will move for authorization. The information sheet and motion form is also available on the court's web site.

(B) What to File.

(i) Form. The applicant must use the court's form. The form is available on the court's web site.

(ii) Additional Documents. The applicant must file with the motion the following documents from prior § 2254 or § 2255 proceedings if they are reasonably available. The court may request respondent to provide these documents:

• the magistrate judge's report and recommendation; and

• the district judge's opinion.

(C) No Filing Fee. A filing fee is not required.

(3) Response. The respondent may file a response within 14 days after the later of service of the motion or respondent's service of supporting documentation.

(4) Court Action.

(A) Considering Response. The court may consider an untimely response.

The court need not await a response in a death penalty case where execution is imminent.

(B) Forwarding Order. The clerk will forward the court's order to the district clerk.

(c) Death Penalty Cases.

(1) Scope. This subrule (c) applies to applications under 28 U.S.C. § 2254 or § 2255 by a person under a sentence of death.

(2) Contacting the Clerk. Counsel must contact the clerk's office by telephone at the earliest possible time—before filing a notice of appeal if possible—to inform the clerk of the status of the case and determine the procedures that apply.

(3) Stay of Execution.

(A) Time for Filing Motion. An applicant moving for a stay must do so as soon as possible after filing the notice of appeal.

(B) Review of Merits on Motion for Stay. The court may conclude it appropriately can address the merits of the case on a motion for a stay. If so, the court will order the parties to address the merits in expedited briefs.

The court may grant a temporary stay pending consideration of the merits to prevent mooting the case. Any oral argument of the merits will be held as soon as practicable after briefs are filed.

(4) Emergency Motions. Counsel with an emergency motion or application must file it with the clerk rather than with an individual judge. The court encourages telephone communication with the clerk as soon as it becomes evident that an applicant will seek emergency relief.

(5) Required Documents for Certificate of Appealability or Stay of Execution.

This subrule (c)(5) applies to an application for a certificate of appealability and a motion for stay of execution. The application or motion must include the following documents if they are not part of the district court's electronic record:

• available transcripts of the district court proceedings; and

• all state and federal opinions or judgments involving any issue presented to this court or, if the ruling was not made in a written opinion or judgment, the relevant portions of the transcript.