Local Rule Rule 9.5: Capital cases: Petitions under 28 U.S.C. § 2254 and Motions to Vacate Sentence Under 28 U.S.C. § 2255

Rule 9.5 Capital cases: Petitions under 28 U.S.C. § 2254 and Motions to Vacate Sentence Under 28 U.S.C. § 2255

A. Scope

These rules shall apply in the United States District Court for the Eastern District of Pennsylvania, in proceedings initiated under 28 U.S.C. § 2254 and 28 U.S.C. § 2255 where the petitioner is challenging a death sentence. In addition to these rules, all parties should also consult 28 U.S.C. § 2254 and 28 U.S.C. § 2255, the applicable provisions of the federal habeas corpus statute at 28 U.S.C. §§ 2241-2266, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, effective April 24, 1996, and the Rules Governing Section 2254 Cases in the United States District Courts and the Rules Governing Section 2255 Cases in the United States District Courts.

B. The Petition

1. Naming the Respondents in 2254 Petitions

a. If the petitioner is currently serving a state court sentence and (s)he is challenging that state court conviction/sentence or the calculation of the sentence, (s)he must name as the respondents the state officer who has custody (i.e., the warden or superintendent of the facility where (s)he is confined). The petitioner must also name the District Attorney of the county in which (s)he was convicted and sentenced, and the Attorney General of the State in which (s)he was convicted and sentenced.

2. Petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and motions to vacate sentence under 28 U.S.C. § 2255 that challenge a capital sentence may be submitted on the standard form supplied by this Court. If the form is not utilized, the submission must be accompanied by a cover sheet that lists:

a. petitioner's full name and prisoner number; if prosecuted under a different name or alias that name must be indicated b. name of person having custody of petitioner (warden, superintendent, etc.) c. petitioner's address d. name of trial judge e. court term and bill of information or indictment number f. charges of which petitioner was convicted g. sentence for each of the charges h. plea entered i. whether trial was by jury or to the bench j. date of filing, docket numbers, dates of decision and results of direct appeal of the conviction k. date of filing, docket numbers, dates of decision and results of any state collateral attack on a state conviction including appeals l. date of filing, docket numbers, dates of decision of any prior federal habeas corpus or § 2255 proceedings, including appeals m. name and address of each attorney who represented petitioner, identifying the stage at which the attorney represented the litigant

3. A petition for writ of habeas corpus under 28 U.S.C. § 2254 or motion to vacate sentence under 28 U.S.C. § 2255 in a death penalty case must

a. list every ground on which the petitioner claims to be entitled to relief under 28 U.S.C. § 2254 (or § 2255 for federal prisoners) followed by a concise statement of the material facts supporting the claims; b. identify at what stage of the proceedings each claim was exhausted in state court if the petition seeks relief from a state court judgment; c. contain a table of contents if the petition is more than twenty-five (25) pages; d. contain citation to legal authority that forms the basis of the claim.

4. Petitioner must file, not later than sixty (60) days after the date of the filing of the petition under § 2254 or motion to vacate sentence under § 2255, a memorandum of law in support. The memorandum of law must

a. contain a statement of the case b. contain a table of contents if it is more than twenty-five (25) pages.

5. The petition/motion and memorandum together must not exceed one hundred fifty (150) pages.

6. All documents filed must be succinct and must avoid repetition.

C. C. The Answer and Reply.

1. The Answer Respondents need not file a response until the memorandum of law is filed.

a. The response must not exceed one hundred fifty (150) pages; b. The response must contain a table of contents if it is more than twenty-five (25) pages; c. The response must be filed within sixty (60) days of the filing of the memorandum of law.

2. State Court Record. Although the Court will attempt to obtain the complete state court record, including transcripts (pretrial, trial, sentencing, and post-conviction proceedings), pleadings, briefs, opinions, and state court orders, from the appropriate Court of Common Pleas, the respondent will be responsible for supplementing the record with any missing documents as directed by the Court. If the respondents provide the Court with the state court record, the respondents shall also submit an index of all material, with page references.

The Clerk of Court shall note on the docket that the original state court record has been received. State court records not submitted electronically do not become part of this Court's permanent case file and will be returned to the appropriate state court upon final disposition, including appeals.

3. The Reply a. Any reply to the response must be filed within sixty (60) days of the filing of the response and may not exceed seventy-five (75) pages.

D. Additional provisions for capital cases.

1. Upon motion and for good cause shown, the judge may extend the page limits for any document.

2. Upon motion and for good cause shown, the judge may extend the time for filing any document.

3. Upon motion and for good cause shown, the judge may permit the filing of a sur-reply to address arguments presented for the first time in a reply brief.

4. The petitioner must file with the Clerk of the District Court a copy of the "Certificate of Death Penalty Case" required by Third Circuit L.A.R. Misc. 111.2(a). Upon docketing, the Clerk of the District Court will transmit a copy of the certificate, together with a copy of the petition to the Clerk of the Court of Appeals as required by Third Circuit L.A.R. Misc. 111.2(a).

5. Upon the entry of a warrant or order setting an execution date in any case within the geographical boundaries of this district, and in aid of this court's potential jurisdiction, the clerk is directed to monitor the status of the execution and any pending litigation and to establish communications with all parties and relevant state and/or federal courts. Without further order of this court, the clerk may, prior to the filing of a petition, direct parties to lodge with this court (1) relevant portions of previous state and/or federal court records, or the entire record, and (2) pleadings, briefs, and transcripts of any ongoing proceedings. To prevent delay, the case may be assigned to a judge, by the same selection process as for other cases, up to fourteen (14) days prior to the execution date. The identity of the judge assigned shall not be disclosed until a petition is actually docketed.

6. In accordance with Third Circuit L.A.R. Misc. 111.3(b), at the time a final decision is entered, the court shall state whether a certificate of appealability is granted or denied. If a certificate of appealability is granted, the court must state the issues that merit the granting of a certificate and must also grant a stay pending disposition of the appeal, except as provided in 28 U.S.C. § 2262.