(a) Defined. A death penalty case is an appeal or other proceeding to which the person under sentence of death is a party, and which challenges, defends, or otherwise relates to the validity or execution of a decreed death sentence.

(b) Certificate of Death Penalty Case. Within 7 days after initiation in this court or a district court of this circuit of a proceeding challenging a federal or state court judgment imposing a death sentence, the government and each party to that proceeding who was sentenced to death must file with the circuit clerk a Certificate of Death Penalty Case form.

(c) Stay of Execution and Motion to Vacate an Order Granting Stay of a Federal or State Court Judgment.

(1) Automatic Stay. In any case in which a death sentence has been imposed by a federal or state court within the circuit, execution of the death sentence is automatically stayed upon (A) the filing of a direct appeal from a judgment imposing a death sentence, or (B) the filing of a notice of appeal from the denial of either the first application for a writ of habeas corpus or the first motion under 28 U.S.C. § 2255. The clerk must promptly enter an order implementing the stay. Unless vacated or modified, the stay provided by this subparagraph remains in effect until the issuance of this court's mandate. A party seeking to extend the stay of execution pending the filing of a petition for certiorari must also seek to stay the mandate under FRAP 41.

(2) Other Stays; Duration. Any judge of a panel assigned to a death penalty case may order a stay of any duration up to the issuance of the mandate. A party seeking to extend the stay of execution pending the filing of a petition for certiorari must also seek to stay the mandate under FRAP 41.

(3) Stays in Relation to a Petition for Rehearing.

(A) A petition for rehearing, when accompanied by a petition for rehearing en banc, is circulated simultaneously to all active judges and the panel assigned to the death penalty case. A judge participating in the petition for rehearing en banc may immediately vote on a stay of execution of a death sentence, without waiting for the assigned panel to act on the petition for rehearing.

(B) A stay of execution of a death sentence pending disposition of a petition for rehearing, when accompanied by a petition for rehearing en banc, is granted upon the affirmative vote of any two judges eligible to participate in rehearing en banc.

(4) Documents Required for Motions for Stay or to Vacate Stay. On a motion for a stay of execution of a death sentence or to vacate a stay, the movant must attach a copy of each document listed below (if it exists) to the original and to each copy of the motion, except in the following circumstances: (A) if time does not permit, in which case the movant must file the required attachments as soon as possible; or (B) if the motion reports the stated intention of the State or the U.S. Attorney not to oppose a temporary stay for the purpose of deciding the motion, in which case the movant must file the necessary attachments within 10 days after filing the motion.

• The indictment or other accusatory instrument;
• The judgment of conviction containing the sentence of death;
• The application or complaint filed in the district court;
• The opinion of the district court setting forth the reasons for granting or denying relief;
• The district court judgment granting or denying relief;
• The district court order granting or denying a stay, and the statement of reasons for its action;
• The certificate of appealability or order denying a certificate of appealability;
• Each state or federal court opinion or judgment bearing on the issues presented in the motion in cases in which the appellant was a party;
• The docket entries of the district court; and
• The notice of appeal.

(5) Emergency Motion. An emergency motion for a stay must be filed in accordance with LR 27.1(d). The motion must contain a brief account of this court's prior actions, if any, and the name of the judge or judges involved in those prior actions.

(6) Filing with the Clerk. All stay motions must be filed with the clerk. If the court orders a stay of execution, the clerk will issue a written order in the name of the court specifying the duration of the stay.

(7) Off-Hours Filing. When a notice of appeal is filed in a death penalty case, the clerk designates a staff member to receive emergency stay motions during nonbusiness hours. The staff member immediately advises the panel assigned to the death penalty case of the filing of an emergency stay motion.

(8) Limits on Stays of Execution. Notwithstanding any provision of this paragraph (c), this court will not grant or maintain stays of execution except in accordance with federal statutes or other governing law.

Last modified at 12/15/2009