Local Rule 72.5: Habeas Corpus Petitions Involving the Death Penalty; Special Requirements

72.5 Habeas Corpus Petitions Involving the Death Penalty; Special Requirements

(a) Applicability. This Rule shall govern the procedures for a first petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 in which a petitioner seeks relief from a judgment imposing the penalty of death. The Court may deem a subsequent filing relating to a particular petition a first petition under this Rule if a court did not dismiss the original filing on the merits. The District Judge or Magistrate Judge to whom the petition is assigned may modify the application of this Rule. This Rule shall supplement the Rules Governing § 2254 Cases and does not in any regard alter or supplant those rules.

(b) Notices From Office of the Attorney General for the State of New York. The Office of the Attorney General for the State of New York ("Attorney General") shall send to the Clerk (1) prompt notice whenever the New York State Court of Appeals affirms a sentence of death; (2) at least once a month, a list of scheduled executions; and (3) at least once a month, a list of the death penalty appeals pending before the New York State Court of Appeals.

(c) Notice From Petitioner's Counsel. Whenever counsel decides to file a petition in this Court, counsel shall promptly file with the Clerk and serve on the Attorney General a written notice of counsel's intention to file a petition. The notice shall state the name of the petitioner, the district in which the petitioner was convicted, the place of the petitioner's incarceration, the status of the petitioner's state-court proceedings, and the scheduled date of execution. The notice is for the Court's information only, and the failure to file the notice shall not preclude the filing of the petition.

(d) Counsel 1. Appointment of Counsel. Each indigent petitioner shall be represented by counsel unless petitioner has clearly elected to proceed pro se and the Court is satisfied, after a hearing, that petitioner's election is intelligent, competent, and voluntary. Where the Court is to appoint counsel, such appointment shall be made at the earliest practicable time. The active judges of this District will certify a panel of attorneys qualified for appointment in death penalty cases ("qualified panel").

If state appellate counsel is available to continue representation in the federal courts and the assigned District Judge deems counsel qualified to continue representation, there is a presumption in favor of continued representation except when state appellate counsel was also counsel at trial. In light of this presumption, it is expected that any appointed counsel who is willing to continue representation and whom the assigned District Judge has found qualified to do so, would ordinarily file a motion for appointment of counsel on behalf of his or her client together with the client's federal habeas corpus petition. If, however, counsel for any reason wishes to confirm appointment before preparing the petition, counsel may move for appointment as described above before filing the petition.

If state appellate counsel is not available to represent the petitioner in the federal habeas corpus proceeding or if appointment of state appellate counsel would be inappropriate for any reason, the Court may appoint counsel upon application of the petitioner. The Clerk shall have available forms for such application. The Court may appoint counsel from the qualified panel. The assigned District Judge may suggest one or more counsel for appointment. If a petitioner makes an application for appointed counsel before filing the petition, the Clerk shall assign the application to a District Judge and Magistrate Judge in the same manner that the Clerk would assign a non-capital petition. The District Judge and Magistrate Judge so assigned shall be the District Judge and Magistrate Judge assigned when counsel files a petition for writ of habeas corpus.

2. Second Counsel. The Guide to Judiciary Policies and Procedures, Appointment of Counsel in Criminal Cases shall govern the appointment and compensation of second counsel.

(e) Filing.

1. General requirement. Petitioners shall file petitions as to which venue lies in this District in accordance with the applicable Local Rules. Petitioners shall fill in their petitions by printing or typewriting. In the alternative, the petitioner may typewrite or legibly write a petition which contains all of the information that the form requires. All petitions shall (1) state whether the petitioner has previously sought relief arising out of the same matter from this Court or any other federal court, together with the ruling and reasons given for denial of relief; (2) set forth any scheduled execution date; and (3) contain the wording in full caps and underscored "Death Penalty Case" directly under the case number on each pleading. Counsel for petitioner shall file an original and three (3) copies of the petition. A pro se petitioner need file only the original.

The Clerk will immediately notify the Attorney General's office when a petition is filed.

When a petitioner who was convicted outside of this District files a petition, the Court will immediately advise the clerk of the district in which the petitioner was convicted.

2. Emergency motions or applications. Counsel shall file emergency motions or applications with the Clerk. If time does not permit the filing of a motion or application in person or by mail, counsel may communicate with the Clerk and obtain the Clerk's permission to file the motion by facsimile. Counsel should communicate with the Clerk by telephone as soon as it becomes evident that he or she will seek emergency relief from this Court. The motion or application shall contain a brief account of the prior actions, if any, of this Court and the name of the judge or judges involved in the prior actions.

(f) Assignment to Judges. Notwithstanding the Court's case assignment plan, the Clerk shall assign petitions to judges of the Court as follows: (1) the Clerk shall establish a separate category for these petitions, to be designated with the title "Capital Case"; (2) all active judges of this Court shall participate in the assignments; (3) the Clerk shall assign petitions in the Capital Case category randomly to each of the available active judges of the Court; (4) if a petitioner has previously sought relief in this Court with respect to the same conviction, the petition shall, when practical, be assigned to the judges who were assigned to the prior proceeding; and (5) pursuant to 28 U.S.C. § 636(b)(1)(B), and consistent with law, the Court may designate Magistrate Judges to perform all duties under this Rule, including evidentiary hearings.

(g) Transfer of Venue. Subject to the provisions of 28 U.S.C. § 2241(d), it is the Court's policy that a petition should be heard in the district in which the petitioner was convicted rather than in the district of the petitioner's present confinement. See L.R. 72.4(b). If an order for the transfer of venue is made, the Court will order a stay of execution which shall continue until such time as the transferee court acts upon the petition or the order of stay.

(h) Stays of Execution.

1. Stay Pending Final Disposition. Upon the filing of a habeas corpus petition, unless the petition is patently frivolous, the Court shall issue a stay of execution pending final disposition of the matter. Notwithstanding any provision of this paragraph (h), the Court shall not grant or maintain stays of execution, except in accordance with law. Thus, the provisions of this paragraph (h) for a stay shall be ineffective in any case in which the stay would be inconsistent with the limitations of 28 U.S.C. § 2262 or any other governing statute.

2. Temporary Stay for Appointment of Counsel. Where counsel in the state-court proceedings withdraws at the conclusion of the state-court proceedings or is otherwise not available or qualified to proceed, the Court may designate an attorney who will assist an indigent petitioner in filing pro se applications for appointment of counsel and for a temporary stay of execution. Upon the filing of this application, the Court shall issue a temporary stay of execution and appoint counsel. The temporary stay will remain in effect for forty-five (45) days unless the Court extends this time.

3. Temporary Stay for Preparation of the Petition. Where the Court appoints new counsel to the case, upon counsel's application for a temporary stay of execution accompanied by a specification of nonfrivolous issues to be raised in the petition, the Court shall issue a temporary stay of execution unless no nonfrivolous issues are presented. The temporary stay will remain in effect for one hundred twenty (120) days to allow newly appointed counsel to prepare and file the petition. The Court may extend the temporary stay upon a subsequent showing of good cause.

4. Temporary Stay for Transfer of Venue. See paragraph (g).

5. Temporary Stay for Unexhausted Claims. If the petition indicates that there are unexhausted claims for which a state-court remedy is still available, the Court shall grant the petitioner a sixty (60) day stay of execution in which to seek a further stay from the state court in order to litigate the unexhausted claims in state court. During the proceedings in state court, the Court will stay the proceedings on the petition. After the state-court proceedings have been completed, the petitioner may amend the petition with respect to the newly exhausted claims.

6. Stay Pending Appeal. If the Court denies the petition and issues a certificate of appealability, the Court will grant a stay of execution which will continue in effect until the court of appeals acts upon the appeal or the order of stay.

7. Notice of Stay. Upon the granting of any stay of execution, the Clerk will immediately notify the appropriate prison superintendent and the Attorney General. The Attorney General shall ensure that the Clerk has a twenty-four (24) hour telephone number for the superintendent.

(i) Procedures for Considering the Petition. Unless the Court summarily dismisses the petition as patently frivolous, the following schedule and procedures shall apply subject to the Court's modification. Requests for enlargement of any time period in this Rule shall comply with these Local Rules.

1. Respondent shall, as soon as practicable, but in any event on or before twenty-one (21) days from the date of service of the petition, file with the Court the following:

(A) Transcripts of the state trial-court proceedings;

(B) Appellant's and respondent's briefs on direct appeal to the Court of Appeals, and the opinion or orders of that Court;

(C) Petitioner's and respondent's briefs in any state-court habeas corpus proceedings and all opinions, orders and transcripts of such proceedings;

(D) Copies of all pleadings, opinions and orders that the petitioner has filed in any previous federal habeas corpus proceeding which arose from the same conviction; and

(E) An index of all materials described in paragraphs (A) through (D) above.

Respondent shall mark and number the materials so that they can be uniformly cited. Respondent shall serve this index upon counsel for petitioner or the petitioner pro se. If time does not permit, the respondent may file the answer without attachments (A) through (D) above, but the respondent shall file these attachments as soon as possible. If any items identified in paragraphs (A) through (D) above are not available, respondent shall state when, if at all, such missing material can be filed.

2. If counsel for petitioner claims that respondent has not complied with the requirements of paragraph (1), or if counsel for petitioner does not have copies of all the documents that respondent filed with the Court, counsel for petitioner shall immediately notify the Court in writing, with a copy to respondent. The Court will provide copies of any missing documents to the petitioner's counsel.

3. Respondent shall file an answer to the petition with accompanying points and authorities within thirty (30) days from the date of service of the petition. Respondent shall attach to the answer any other relevant documents that the parties have not already filed.

4. Within thirty (30) days after respondent has filed the answer, petitioner may file a traverse.

5. There shall be no discovery without leave of the Court.

6. Either party shall make any request for an evidentiary hearing within fifteen (15) days from the filing of the traverse or within fifteen (15) days from the expiration of the time for filing the traverse. The request shall include a specification of which factual issues require a hearing and a summary of what evidence petitioner proposes to offer. Any opposition to the request for an evidentiary hearing shall be made within fifteen (15) days from the filing of the request. The Court will then give due consideration to whether it will hold an evidentiary hearing.

(j) Evidentiary Hearing. If the Court holds an evidentiary hearing, the Court will order the preparation of a transcript of the hearing, which is to be immediately provided to petitioner and respondent for use in briefing and argument. Upon the preparation of the transcript, the Court may establish a reasonable schedule for further briefing and argument about the issues considered at the hearing.

(k) Rulings. The Court's rulings may be in the form of a written opinion, which will be filed, or in the form of an oral opinion on the record in open court, which shall be promptly transcribed and filed. The Clerk will immediately notify the appropriate prison superintendent and the Attorney General whenever relief is granted on a petition. The Clerk will immediately notify the clerk of the United States Court of Appeals for the Second Circuit by telephone of (1) the issuance of a final order denying or dismissing a petition without a certificate of probable cause for appeal or (2) the denial of a stay of execution. If the petitioner files a notice of appeal, the Clerk will transmit the appropriate documents to the United States Court of Appeals for the Second Circuit immediately.