| U.S. District Court District of Oregon Local Rules of Civil Practice |
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Effective June 1, 2006
(a) Petitions by state prisoners for writs of habeas corpus pursuant to 28 U.S.C. § 2254, and motions pursuant to 28 U.S.C. §§ 2241 or 2255 by federal prisoners who are in custody, shall be legibly written or typewritten on forms supplied by the court and shall be signed and verified by the prisoner. The original and two (2) copies of the petition or motion shall be sent to the clerk.
(b) If the petition is taken in forma pauperis, it shall include an affidavit setting forth information which establishes that the applicant will be unable to pay the fees and costs of the proceedings.
All procedures in habeas corpus proceedings and motions under 28 U.S.C. §§ 2254 and 2255 shall follow the rules governing such matters in the United States Courts as adopted and amended by the Supreme Court of the United States.
(a) Applicability
This rule shall govern the procedures for a first petition for a writ of habeas corpus in which a petitioner seeks relief from a state court’s judgment imposing a sentence of death. A subsequent filing shall be treated as a first petition under this rule if the original filing was voluntarily dismissed or dismissed for failure to exhaust state remedies. This rule is intended to supplement The Rules Governing §2254 Cases and is not intended to alter or amend those rules. The application of this rule to a particular petition may be modified by the district judge to whom the petition is assigned.
(b) Information on Status of Case
The Clerk of the Court shall periodically request copies of the reports prepared by the State Court Administrator regarding the status of cases in which an Oregon court has imposed the penalty of death.
(c) Notice from Petitioner’s Counsel
Whenever counsel determines that a petition will be filed in this court, counsel shall file promptly with the clerk of this court, and send to the Oregon Attorney General’s Office, a written notice of intention to file a petition. The notice shall state the name of the petitioner, the county in which the petitioner was convicted, the place of petitioner’s incarceration, and the status of the petitioner’s state court proceedings. The notice is only for the information of the court, and failure to file the notice shall not preclude the filing of the petition.
(d) Counsel
(1) Representation by Counsel: Each 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 and voluntary.
(2) Appointment of Counsel: Unless petitioner is proceeding pro se or is represented by retained counsel, counsel shall be appointed in every such case at the earliest practicable time. A panel of attorneys qualified for appointment in death penalty cases will be recruited and maintained by the Federal Public Defender. The Federal Public Defender will accept and review referrals to this panel from interested associations and bar groups. The Federal Public Defender and the members of the Federal Public Defender’s office may be included on this list.
(3) Continuation of Representation: When a judgment of conviction that includes a sentence of death is affirmed by the Oregon Supreme Court and subsequent proceedings in the state courts have been concluded, if counsel is willing to continue representation in the federal habeas corpus proceedings, the Federal Public Defender shall review counsel’s performance in the state courts and make a recommendation as to whether that counsel should be appointed in federal court.
(4) State Post-Conviction Counsel Available: If state post-conviction counsel is available and willing to continue representation in the federal court, and if he or she is found to be qualified to do so by the Federal Public Defender, there is a presumption in favor of continued representation. In light of this presumption, it is expected that appointed counsel who is willing to continue representation and who has been found by the Federal Public Defender to be qualified to do so would file a motion for appointment of counsel on behalf of the client, together with the client’s federal habeas corpus petition. If, however, counsel for any reason wishes to confirm his or her appointment before preparing the petition, counsel may move for appointment before filing the petition.
(5) State Post-Conviction Counsel Unavailable: If state post-conviction counsel is not available to represent petitioner in the federal habeas corpus proceedings, or if appointment of state post-conviction counsel would be inappropriate for any reason, the court shall appoint counsel upon application of petitioner. The clerk of court shall have forms available for such application. A model form for such application is annexed to this rule. The Federal Public Defender shall recommend counsel to the court from the panel of qualified attorneys. If application for appointment of counsel is made before a finalized petition has been filed, the application shall be assigned to a district judge in the same manner that a finalized petition would be assigned, and counsel shall be appointed by the assigned judge. The judge so assigned shall continue to preside over the proceedings through their conclusion.
(6) Two Counsel to be Appointed: Due to the complex, demanding, and protracted nature of death penalty proceedings, at least two counsel shall be appointed in every case.
(e) Filing
(1) Assignment of Case Number: Upon the submission of any document identified at LR 81.3(c), LR 81.3(d)(5), LR 81.3(g)(2) and (3), the next sequentially numbered Civil Miscellaneous file shall be opened and that number assigned to the document. Future submissions relative to the same proceeding shall also bear the same Civil Miscellaneous number.
(2) Petition Requirements: Petitions shall be completed in conformance with the Model Form accompanying the Rules Governing §2254 Cases. All petitions (a) shall state whether 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 of such court, and (b) shall set forth any scheduled execution date. The foregoing requirements do not apply to preliminary petitions filed under Section (g)(2) and (3), below.
(3) Copies: An original and three copies of the petition shall be filed by counsel for the petitioner. A pro se petitioner need only file the original. If no fee is tendered or waiver sought with the filing of a petition, the clerk shall grant in forma pauperis status conditionally, subject to further review by a judge, and shall not delay the filing, assignment, or statistical opening of any civil action pending the resolution of in forma pauperis status.
(f) Assignment to District Judges
Notwithstanding the general assignment plan of this court, petitions shall be assigned to the district judges of the court as follows:
(1) Category: The clerk of the court shall establish a separate category for these petitions, to be designated with the title “Capital Case”.
(2) Participation: All active district judges of this court shall participate in the assignments, without regard to intra district venue.
(3) Random Assignment: Until each active district judge has one capital case, petitions in the capital case category or pre-petition documents identified at LR 81.3(c), LR 81.3(d)(5), LR 81.3(g)(2) and LR81.3(g)(3) shall be assigned blindly and randomly by the clerk of the court to each of the active district judges of the court. At such time as each active district judge has one capital case, the blind assignment process will start again until each active district judge, and other judges the calendar management committee finds available, has taken a case. Assignment and new filings will continue under this procedure.
(4) Certificate of Unavailability: If the assigned district judge has filed a Certificate of Unavailability with the clerk of the court, which is in effect on the date of the assignment, a new random assignment will be made to another judge immediately.
(5) Previously Assigned Petition: If petitioner has previously sought relief in this court with respect to the same conviction, the petition will be assigned to the district judge who was assigned to the prior proceedings, if he or she is still sitting, unless such district judge has taken senior status and has elected not to hear capital habeas corpus petitions.
(6) Assignment to a Magistrate Judges: Pursuant to 28 U.S.C. §636(b)(1)(B), and not inconsistent with law, United States magistrate judges may be designated by the court to perform all duties under this rule.
(g) Stays of Execution (See Appendix of Forms #20)
(1) Stay Pending Final Disposition in District Court: Upon the filing of a petition, unless the petition is patently frivolous, the judge may order a stay of execution pending final disposition of the petition in this court.
(2) Temporary Stay for Appointment of Counsel: When 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 Federal Public Defender will designate an attorney from the panel, who will assist an indigent petitioner in filing a pro se application for appointment of counsel and for temporary stay of execution. This application shall be substantially in the form presented in the Appendix of Forms, and shall be accompanied by a statement, describing one or more federal grounds for relief. Upon the filing of this application and statement, the district court shall issue a temporary stay of execution and appoint counsel from the panel of attorneys certified for appointment. 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: When counsel new to the case is appointed, upon counsel’s application for a temporary stay of execution accompanied by a specification of issues to be raised in the petition, the district court shall issue a temporary stay of execution, unless only frivolous issues are presented. The temporary stay will remain in effect for one hundred twenty (120) days from the filing of the record by the respondent under Section (h)(1) of this rule, to allow newly appointed counsel to prepare and file the petition. The temporary stay may be extended by the court upon a showing of good cause.
(4) Stay Pending Appeal from District Court: If the petition is denied and a certificate of appealability is issued, the court will grant a stay of execution, which will continue in effect until the court of appeals issues its mandate.
(5) Notice of Stay: Upon the granting of any stay of execution, the clerk of the court will immediately notify the Oregon Attorney General’s Office which shall immediately notify the Superintendent of the Oregon State Penitentiary. The Oregon Attorney General’s Office shall ensure that the clerk of the court has a 24-hour telephone number to that office.
(6) Application of 28 U.S.C. §2262: Subsection (1) through (4) of this section (g) apply only if the stay provisions of 28 U.S.C. §2262 do not apply.
(h) Procedures for Considering the Petition
Unless the district judge dismisses the petition under Rule 4 of the Rules Governing §2254 Cases, the following schedule and procedure shall apply, subject to modification by the district judge for good cause shown. Requests for enlargement of any time period in the Rule shall comply with Local Rules.
(1) Schedule: Respondent shall, as soon as practicable but in any event on or before sixty-three (63) days from the date of service of the application for appointment of counsel or the petition, whichever occurs first, file with the court duplicate copies of the following documents. These documents also must be served on petitioner’s lead counsel, unless respondent confirms that petitioner’s counsel already has a copy of the document. If respondent’s and petitioner’s counsel agree, item(s) may be omitted from this list.
(A) Relevant portions of the trial court file from petitioner’s criminal trial, and the Oregon Judicial Information Network (OJIN) printout reflecting the contents of that trial court file;
(B) Relevant transcripts filed with the Oregon Supreme Court on direct review.
(C) The appellant’s and respondent’s briefs and any reply brief filed on direct review in the Oregon Supreme Court, and the opinion and any relevant orders of that court; any petition for certiorari from the Oregon Supreme Court’s decision, together with the state’s response, if any; any subsequent briefing filed in the United States Supreme Court and any relevant orders and decisions from that Court, and the appellate judgment;
(D) Relevant portions of the trial court file, including petitioner’s petition(s) and the trial court’s opinion, if any, and judgment, from any state post-conviction case that arose from the same conviction, together with the pertinent OJIN printout;
(E) Relevant transcripts filed with the trial court in any state post-conviction case that arose from the same conviction, except to the extent those transcripts and exhibits are covered by subsection (h)(1)(B) of this rule;
(F) The petitioner’s and respondent’s briefs filed on appeal in any state post-conviction proceeding arising from the same conviction; the opinion and any relevant orders of the Oregon Court of Appeals; the petition for review, if any; any additional briefing filed in the Oregon Supreme Court; any pertinent orders from that court, together with the court’s opinion, if any review is allowed; and petition for certiorari filed with the United States Supreme Court; the response, if any; and relevant orders and decisions from that Court, and the appellate judgment;
(G) Copies of all pleadings, opinions, and orders in any previous federal habeas corpus proceeding filed by petitioner, or on petitioner’s behalf, that arose from the same conviction; and
(H) An index of all materials described in items (A) through (G) above shall be prepared reflecting the filing date, title of the document and a reference to the document number for each document submitted. These requirements also apply to any supplements to the state court record.
For purposes of this rule, “relevant” means any document that respondent reasonably believes may relate to a claim raised by petitioner. If any items identified in paragraphs (A) through (G) above are not available, respondent shall state when, if at all, such missing material can be filed.
(2) Assembling the Record
(A) Both copies of each document submitted under LR 81.3(h)(1)(A) through (G) shall be individually tabbed and numbered consecutively.
(B) Each document submitted shall bear a copy of the state court file stamp. The record shall be accompanied by a certification from the clerk of the state court attesting to the authenticity of the documents.
(C) The state court record shall be submitted in volumes consisting of no more than 250 pages each. Each volume shall be two-hole punched at the top center and fastened with a two prong fastener. Each volume shall be identified with the case title and case number as required in LR 10.2. The caption of the volume shall be, e.g:
Example Clerk's Record - Multnomah County Circuit Court
C86-05-323246
Vol. #1 of 3 Volumes(3) Failure to Comply: If counsel for petitioner claims that respondent has not complied with the requirements of paragraphs (1) and (2), counsel for petitioner shall immediately notify the court in writing, with a copy to respondent.
(4) Status Conference: As soon as practicable after the filing of the petition, the court shall set a status conference to determine a schedule for further proceedings.
(5) Procedural Defenses
(A) Respondent is responsible for raising procedural defenses in the appropriate responsive pleading(s). A failure to plead any such defense, except exhaustion, before the date of the evidentiary hearing, or submission of the case for decision in cases in which no evidentiary hearing is held, will constitute a waiver of the defense.
(B) The respondent may choose to waive a procedural defense in order to address the merits of the claim(s) for which the defense is waived.
(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 provided immediately 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
(1) 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 will be transcribed and filed promptly.
(2) The clerk of the court will notify the Superintendent of the Oregon State Penitentiary and the Oregon Attorney General’s Office immediately whenever relief is granted on a petition.
(3) The clerk of the court will notify the clerk of the United States Court of Appeals for the Ninth Circuit immediately, by telephone, of (1) the issuance of a final order denying or dismissing a petition without a certificate of appealability, or (2) the denial of a stay of execution.
(4) When a notice of appeal is filed, the clerk of the court will transmit the records to the Court of Appeals immediately, as required by Circuit Rules.
(k) Return of State Court Record
Upon conclusion of proceedings at either the district or appellate court level, the clerk of the court is directed to return one copy of the state court record to the office of the Oregon Attorney General.
Amendment History to LR 81 | |
June 1, 2002 | |
| LR 81.3(g) | Added reference to Appendix of Forms |
June 1, 2006 | |
| Generally | Appendix of Forms number updated |