UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

CIRCUIT RULE 22. Death Penalty Cases.

(a) Operation and Scope.

(1) These rule applies to all cases involving persons under sentence of capital punishment.

(2) Cases within the scope of this rule will be assigned to a panel as soon as the appeal is docketed. The panel to which a case is assigned will handle all substantial matters pertaining to the case, including certificates of appealability, stays of execution, consideration of the merits, second or successive petitions, remands from the Supreme Court of the United States, and associated procedural matters. If a judge on the panel is unavailable to participate, another judge may be substituted.

(3) Pursuant to 18 U.S.C. §3006A, and 21 U.S.C. §848(q), 28 U.S.C. §2254(h), and 28 U.S.C. §2255 ¶5, appellate counsel shall be appointed for any person under a sentence of death who is financially unable to obtain representation, requests that counsel be appointed, and does not already have counsel appointed by a state under 28 U.S.C. §2261.

(4) The panel to which a case is assigned may make changes in procedure and scheduling in any case when justice so requires.

(b) Notice of Appeal and Required Documents.

(1) The district court clerk must notify the clerk of this court by telephone immediately upon the filing of a notice of appeal of a case within the scope of this rule. In all cases within the scope of this rule, the district court clerk must immediately transmit the record to the court of appeals. A supplemental record may be sent later if items are not currently available.

(2) Upon receipt of the record from the district court clerk, or any petition, application or motion invoking the jurisdiction of this court, the clerk of this court shall docket the appeal. The panel will be immediately notified.

(3) Upon filing a notice of appeal, the appellant shall immediately transmit to the court four copies of, or a citation to, each state or federal court opinion, memorandum decision, order, transcript of oral statement of reasons, or judgment involving an issue to be presented on appeal to this court. If a document or transcript is needed and is not immediately available, appellant shall submit an affidavit as to the decision and reasons given by the court. Appellant shall file the document or transcript as soon as it is available.

(c) Briefs.

(1) Unless the court sets another schedule, the following time limitations apply.

(A) On direct appeal in a federal criminal prosecution, the appellant shall serve and file a brief within 63 days after the date on which the appeal is docketed. The appellee shall serve and file a brief within 49 days after service of the brief by the appellant. The appellant may serve and file a reply brief within 21 days after service of the brief by the appellee.

(B) In all other cases within the scope of this rule the appellant will have 28 days from the date on which the notice of appeal is filed to file and serve a brief. The appellee then will have 21 days from the service of the brief to file and serve a brief. Within seven days after service of the appellee's brief, appellant may file and serve a reply brief.

(2) If an issue is raised that was not presented at a prior stage of the litigation (for example, in the district court, the appropriate state court, or this court on a prior appeal), the party raising the issue must state why the issue was not raised and why relief should nonetheless be granted.

(d) Submission and Oral Argument.

(1) The court will hear oral argument in every direct appeal in a federal criminal prosecution and in every appeal from the decision concerning an initial petition under 28 U.S.C. §2254 in a state case. In any other case, a request for oral argument will be evaluated under the standards of Fed. R. App. P. 34(a).

(2) Oral argument will be held expeditiously after the filing of the reply brief.

(3) The merits of an appeal may be decided summarily if the panel decides that an appeal is frivolous. In such a case, the panel may issue a single opinion deciding both the merits of the appeal and the motion for a stay of execution.

(e) Opinion or Order.

(1) The panel's decision shall be made without undue delay. In cases to which 28 U.S.C. §2266 applies, the panel's decision will be issued no later than 120 days after the date the reply brief was filed.

(2) In cases in which an execution date has been set and not stayed, the panel will release the decision with dispatch to allow the losing party time to ask for rehearing or consideration by the Supreme Court.

(f) Panel or En Banc Rehearing.

(1) Any active judge of the court may, within 14 days after filing of the opinion, notify the panel and the clerk to hold issuance of the mandate and poll the court for en banc consideration. If the mandate has already issued, it may be recalled by the panel or by the en banc court. All judges are to vote within 10 days after the request for the vote on en banc consideration. A judge unable by reason of illness or absence to act within the time allowed by this rule may extend the time to act for a reasonable period upon written notice to the other judges. Unless within 30 days after the petition for rehearing, or the answer to the petition (if one has been requested), is filed, a majority of the panel, or of the judges in active service, has voted to grant rehearing or rehearing en banc, the court will enter an order denying the petition.

(2) If the court decides to rehear an appeal en banc, the appeal will be scheduled for oral argument expeditiously and decided within the time allowed by 28 U.S.C. §2266(c).

(g) Second or Successive Petitions or Appeals.

A second or successive petition or appeal will be assigned to the panel that handled the first appeal, motion for stay of execution, application for certificate of appealability or other prayer for relief. A motion for leave to commence a second or successive case is governed by Circuit Rule 22.2 and likewise will be assigned to the original panel.

(h) Stay of Execution.

(1) A stay of execution is granted automatically (A) on direct appeal in a federal criminal prosecution by Fed. R. Crim. P. 38(a), and (B) in some state cases by 28 U.S.C. §2262(a). A stay of execution is forbidden in some state cases by 28 U.S.C. §2262(b) and (c). All requests with respect to stays of execution over which the court possesses discretion, or in which any party contends that §2262 or Rule 38(a) has not been followed, must be made by motion under this rule.

(2) An appellant may not file a motion to stay execution or to vacate a stay of execution unless there is an appeal accompanied by a certificate of appealability or four copies of a request that this court issue a certificate of appealability together with a copy of the district judge's statement as to why the certificate should not issue. The request for a certificate of appealability and the motion to stay execution shall be decided together.

(3) The movant shall file four copies of the motion and shall immediately notify opposing counsel by telephone. If the following documents have not yet been filed with this court as part of the record, a copy of each shall be filed with each copy of the motion:

(i) certificate of appealability;

(ii) the complaint, petition or motion seeking relief in the district court and the response thereto;

(iii) the district court decision on the merits;

(iv) the motion in the district court to stay execution or vacate stay of execution and the response thereto; and

(v) the district court decision on the motion to stay execution or vacate stay of execution. If any required document cannot be filed, the movant shall state the reason for the omission.

(4) If an issue is raised that was not presented at a prior stage of the litigation (for example, in the district court, the appropriate state court, or this court on a prior appeal), the party raising the issue must state why the issue was not raised and why relief should nonetheless be granted.

(5) If the attorney for the government has no objection to the motion for stay, the court shall enter an order staying the execution.

(6) Parties shall endeavor to file motions with the clerk during normal business hours. Parties having emergency motions during nonbusiness hours shall call the clerk's telephone number for recorded instructions. The clerk shall promptly notify, by telephone, the designated representatives of the appropriate governmental body or counsel for petitioner of any such motions or other communications received by the clerk during nonbusiness hours. Each side must keep the clerk informed of the home and office telephone number of one attorney who will serve as emergency representative.

(7) An order of the panel granting or denying a motion to issue or vacate a stay of execution shall set forth the reasons for its decision.

(i) Clerk's List of Cases.

The clerk shall maintain a list by jurisdiction of cases within the scope of this rule.

(j) Notification of State Supreme Court Clerk.

The clerk shall send to the state supreme court a copy of the final decision in any habeas corpus case within the scope of this rule.

(As amended Jan. 1, 1997.)