Local Rule Civil Rule HC.3: Habeas Corpus Proceedings - (28 U.S.C. § 2254) - Petitions Involving the Death Penalty

Civil Rule HC.3 Habeas Corpus Proceedings - (28 U.S.C. § 2254) - Petitions Involving the Death Penalty a. Applicability. This rule will 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. A subsequent filing may be deemed a first petition under these rules to a particular petition if the original filing was not dismissed on the merits. The application of this rule may be modified by the judge to whom the petition is assigned. These rules will supplement the Rules Governing § 2254 Cases and do not in any regard alter or supplant those rules. b. Notices from California Attorney General. The California Attorney General will send the following reports: 1. Report Upon Setting of Execution Date. Whenever an execution date is set, the California Attorney General must send prompt notice to the Clerk of this Court and Chief Judge of this District Court, within seven (7) days; and 2. Semi-Annual Report. The California Attorney General must electronically send to the Chief Judge of this District Court and designated recipients a semi-annual report that lists: a) All scheduled executions in California; b) All capital cases, pending on direct appeal before the California Supreme Court; c) All capital cases affirmed on direct appeal and pending before the California Supreme Court on first state habeas corpus petitions; and d) The county of conviction for each case. c. Notice from Petitioner's Counsel. Whenever counsel determines that a petition will be filed in this court, counsel must promptly file with the Clerk of this court and send to the California Attorney General a written notice of intention to file a petition. The notice must state the name of the petitioner, the district in which petitioner was convicted, the place of petitioner's incarceration, and the status of petitioner's State Court proceedings. The notice is for the information of the Court only, and the failure to file the notice will not preclude the filing of the petition. d. Counsel. 1. Appointment of Counsel. Each indigent petitioner must be represented by counsel unless petitioner has clearly elected to proceed pro se and the Court is satisfied, after hearing, that petitioner's election is intelligent and voluntary. Unless petitioner is represented by retained counsel or has elected to proceed pro se, counsel must be appointed in every such case at the earliest practicable time upon application of petitioner and provided petitioner is financially unable to obtain adequate representation, as required pursuant to 18 U.S.C. § 3599. The Clerk of Court must have available forms for such application. The appointment of counsel in § 2254 capital habeas cases are governed by 18 U.S.C. § 3599, the CJA Guidelines, Ch. 6, the Ninth Circuit CJA Policies and Procedures, and this district's CJA Plan, Appendix D. Counsel may be appointed pursuant to the recommendation of the Capital Case Committee, or the Court may appoint any other attorney under 18 U.S.C. § 3599, as outlined in the CJA Plan, Appendix D. If application for appointed counsel is made before a petition has been filed, the application must be assigned to a district judge in the same manner that a petition would be assigned, and counsel must be appointed by the assigned judge. The judge so assigned must be the judge assigned when counsel files a petition for writ of habeas corpus. 2. Compensation of Counsel. The compensation of counsel in § 2254 capital habeas cases are governed by 18 U.S.C. § 3599, the CJA Guidelines, Ch. 6, the Ninth Circuit CJA Policies and Procedures, and the CJA Plan, Appendix D. e. Assignment to Judges. Notwithstanding the general assignment plan of this court, petitions must be assigned to judges of the Court as follows: 1. The Clerk of the Court must establish a separate category for these petitions, to be designated with the title "Capital case". 2. All active or combination of active and senior judges of this court must participate in the assignments without regard to intra district venue. 3. Petitions in the capital case category must be assigned blindly and randomly by the Clerk of the Court to each of the active or combination of active and senior judges of the Court. 4. If the assigned judge has filed a certificate of unavailability with the Clerk of the Court which is in effect on the date of assignment, a new random assignment will be made to another judge immediately. 5. If a petitioner has previously sought relief in this court with respect to the same conviction, the petition will be assigned to the judge who was assigned to the prior proceeding. 6. Pursuant to 28 U.S.C. § 636(b)(1)(B), and not inconsistent with law, magistrate judges may be designated by the Court to perform all duties under these rules, including evidentiary hearings. f. Transfer of Venue. Subject to the provisions of 28 U.S.C. § 2241(d), it is the policy of this court that a petition should be heard in the district in which petitioner was convicted, rather than in the district of petitioner's present confinement. If an order for the transfer of venue is made, the judge will order a stay of execution which must continue until such time as the transferee court acts upon the petition or the order of stay. g. Stays of Execution. 1. Stay Pending Final Disposition. Upon the filing of a habeas corpus petition, unless the petition is patently frivolous, the District Court must issue a stay of execution pending final disposition of the matter. 2. Temporary Stay for Appointment of Counsel. Where counsel in State Court proceedings withdraws at the conclusion of the State Court proceedings or is otherwise not available to assist, the Federal Defender will assist an indigent petitioner in filing pro se applications for appointment of counsel and for temporary stay of execution. Upon the filing of this application the District Court must issue a temporary stay of execution and appoint counsel as outlined the CJA Plan, Appendix D and HC.3(d)(1). The temporary stay will remain in effect for forty-five (45) days unless extended by the Court. 3. Temporary Stay for Preparation of the Petition. Where counsel new to the case is appointed, upon counsel's application for a temporary stay of execution accompanied by a specification of nonfrivolous issues to be raised in the petition, the District Court must 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 temporary stay may be extended by the Court upon a subsequent showing of good cause. 4. Temporary Stay for Transfer of Venue. (See paragraph f.) 5. Temporary Stay for Unexhausted Claims. If the petition indicates that there are unexhausted claims from which the State Court remedy is still available, petitioner may be granted a thirty (30) day period in which to commence litigation on the unexhausted claims in State Court. During the proceedings in State Court, the proceedings on the petition will be stayed. After the State Court proceedings have been completed, petitioner may amend the petition with respect to the newly exhausted claims. 6. Stay Pending Appeal. If the petition is denied and a certificate of probable cause for appeal is issued, the Court will grant a stay of execution which will continue in effect until the Court of Appeals acts upon the appeal of the order of stay. 7. Notice of Stay. Upon the granting of any stay of execution, the Clerk of the Court will immediately notify the warden of San Quentin Prison and the California Attorney General. The California Attorney General must assure that the Clerk of the Court has a twenty-four-hour telephone number to the warden. h. Procedures for Considering the Petition. Unless the judge summarily dismisses the petition under Rule 4 of the Rules Governing § 2254 Cases, the following schedule and procedures must apply, subject to modification by the judge. Requests for enlargement of any time period in this rule must comply with the applicable local rules of the Court. 1. Respondent must as soon as practicable, but in any event on or before twenty-one (21) days from the date of service of the petition, lodge 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 California Supreme Court, 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 in any previous federal habeas corpus proceeding filed by petitioner which arose from the same conviction. e) An index of all materials described in paragraphs (A) through (D) above. Such materials are to be marked and numbered so that they can be uniformly cited. Respondent must serve this index upon counsel for petitioner. If any items identified in paragraphs (A) through (D) above are not available, respondent must 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 (a), or if counsel for petitioner does not have copies of all the documents lodged with the Court by respondent, counsel for petitioner must immediately notify the Court in writing, with a copy to respondent. Copies of any missing documents will be provided to counsel for petitioner by the Court. 3. Respondent must file an answer to the petition with accompanying points and authorities within thirty (30) days from the date of service of the petition. Respondent must include in the answer the matters defined in Rule 5 of the Rules Governing § 2254 Cases and must attach any other relevant documents not already filed. 4. No discovery will be had without leave of the Court. 5. Unless extended by the Court at any time, a request for an evidentiary hearing by either party must be made within fourteen (14) days from the filing of the answer to the petition. The request must include 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 must be made within fourteen (14) days from the filing of the request. The Court will then give due consideration to whether an evidentiary hearing will be held. i. Evidentiary Hearing. If an evidentiary hearing is held, 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 of the issues considered at the hearing. j. 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 an open court, which must be promptly transcribed and filed. The Clerk of the Court will immediately notify the warden of San Quentin Prison and the California Attorney General whenever relief is granted on a petition. The Clerk of the Court will immediately notify the Clerk of the United States Court of Appeals for the Ninth Circuit by telephone of (a) the issuance of a final order denying or dismissing a petition without a certificate of probable cause for appeal, or (b) the denial of a stay of execution. When a notice of appeal is filed, the Clerk of the Court will transmit the available records to the Court of Appeals immediately.