(b) The parties shall file an original and four copies of petitions; responses to petitions; and any supporting papers and appendices. (New Section 7/1/2000) CIRCUIT RULE 21-3 CERTIFICATE OF INTERESTED PARTIES Petitions for writs of mandamus or prohibition, and for other extraordinary writs, shall include the corporate disclosure statement required by FRAP 26.1 and the statement of related cases required by Circuit Rule 28-2.6. CIRCUIT RULE 21-4 ANSWERS TO PETITIONS No answer to such a petition may be filed unless ordered by the Court. Except in emergency cases, the Court will not grant a petition without a response. Cross Reference: FRAP 22, Habeas Corpus Proceedings; and Circuit Rules 27-1, 27-2, 27-3, and 27-6, Motions Practice. CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 21-1 to 21-4 A petition for writ of mandamus, writ of prohibition or other extraordinary relief is processed by the clerk and motions attorneys in the same fashion as a motion. If the panel does not believe that the petition makes a prima facie showing justifying issuance of the writ, it will deny the petition forthwith. That denial is not regarded as a decision on the merits of the claims. In other instances, the panel will direct that an answer and reply may be filed within specified times. The panel may also issue a stay or injunction pending further consideration of the petition. After receipt of the answer and reply, or expiration of the times set therefor, the matter is then forwarded to a new motions panel unless the first panel directs otherwise. The panel may grant or deny the petition or set it for oral argument. If the panel decides to set the petition for argument, it may be calendared before a regular panel of the Court or before the motions panel. (Rev. 7/1/2000) In emergency circumstances, an individual judge may grant temporary relief to permit a motions panel to consider the petition, may decline to act, or may order that an answer be filed. If the judge determines that immediate action on the merits is necessary, the judge will contact the members of the court currently sitting as a motions panel until two or more judges can consider whether to grant or deny the petition. Except in extreme emergencies, the judges will not grant a petition without calling for an answer to the petition. (Rev. 7/1/2000) TITLE VI: HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS CIRCUIT RULE 22-1 CERTIFICATE OF APPEALABILITY (COA) (a) General Procedures. Petitioners appealing the district court’s judgment in either a 28 US.C. §§ 2254 and 2255 proceeding should follow the procedures set forth in Federal Rules of Appellate Procedure 4 and 22(b). A motion for a certificate of appealability (“COA”) must first be considered by the district court. If the district court grants a COA, the court shall state which issue or issues satisfy the standard set forth in 28 U.S.C. § 2253(c)(2). The court of appeals will not act on a motion for a COA if the district court has not ruled first. (Rev. 1-1-04) (b) District Court Records. If the district court denies in full in a § 2254 proceeding, the district court clerk shall forward the entire record to the court of appeals. If the district court denies a COA in a § 2255 proceeding, the district court clerk shall forward that portion of the record beginning with the filing of the § 2255 motion. (Rev. 1-1-04) (c) Grant in Part or in Full by District Court. If the district court grants a COA as to any or all issues, a briefing schedule will be established by the court at case opening and petitioner shall brief only those issues certified or otherwise proceed according to section (e), below. (Rev. 1-1-04) (Rev. 3-11-04) (d) Denial in Full by District Court. If the district court denies a COA as to all issues, petitioner may file a motion for a COA in the court of appeals within thirty-five (35) days of the district court’s entry of its order (1) denying a COA in full, or, (2) denying a timely filed post-judgment motion, whichever is later. If petitioner does not file a COA motion with the court of appeals after the district court denies a COA motion in full, the court of appeals will deem the notice of appeal to constitute a motion for a COA. If the court appoints counsel to represent petitioner, counsel will be given additional time to file a renewed COA motion. (Rev. 1-1-04). If petitioner files a motion for a COA with the court of appeals, respondent may, and in capital cases with no pending execution date shall, file a response to the motion for a COA within thirty-five (35) days from service of the COA motion. In capital cases where an execution date is scheduled and no stay is in place, respondent shall file a response as soon as practicable after the date petitioner’s motion is served or, if no motion is filed, as soon as practicable after the district court’s entry of its order denying a COA. (New 1-1-04) If, after the district court has denied a COA in full, the motions panel also denies a COA in full, petitioner, pursuant to Circuit Rule 27-10, may file a motion for reconsideration. (New 1-1-04) When a motions panel grants a COA in part and denies a COA in part, a briefing schedule will be established and no motion for reconsideration will be entertained. Petitioner shall brief only those issues certified otherwise proceed according to section (e), below. (New 1-1-04) (e) Briefing Uncertified Issues. Petitioners shall brief only issues certified by the district court or the court of appeals. Alternatively, if a petitioner concludes during the course of preparing the opening brief, that an uncertified issue should be discussed in the brief, the petitioner shall first brief all certified issues under the heading, “Certified Issues,” and then, in the same brief, shall discuss any uncertified issues under the heading, “Uncertified Issues.” Uncertified issues raised and designated in this manner will be construed as a motion to expand the COA and will be addressed by the merits panel to such extent as it deems appropriate. Except, in the extraordinary case, the court will not extend the length of the brief to accommodate uncertified issues. (New 1-1-04) (f) Response to Uncertified Issues. Respondent may, but need not, address any uncertified issues in its responsive brief. The court will afford respondent an opportunity to respond before relief is granted on any previously uncertified issue. (New 1-1-04) Cross Reference: Fed. R. App. P. 27; Cir. R. 27-1; Fed. R. App. P.32(a)(5)(6)(7). (New 1-1-04) CIRCUIT ADVISORY COMMITTEE NOTE TO CIRCUIT RULE 22-1 The court strongly encourages petitioner to brief only certified issues. However, if petitioner concludes that an uncertified issue should be discussed in the opening brief, petitioner shall first discuss certified issues under the heading, “Certified Issues” and then, in the same brief, shall discuss uncertified issues under the heading, “Uncertified Issues.” The court may decline to address uncertified issues if they are not raised and designated as required by this Rule. (Rev. 1-1-04) CIRCUIT RULE 22-2 DIRECT CRIMINAL APPEALS, FIRST PETITIONS, AND STAYS OF EXECUTION: CAPITAL CASES (a) Assignment. In direct criminal appeals and section 2241, section 2254, and section 2255 appeals which involve judgments of death and finally dispose of the case, the Clerk, upon the completion of briefing, will assign the appeal to a death penalty panel composed of active judges and senior judges willing to serve on death penalty panels. The names of the panel members will be disclosed one week prior to the court calendar week. However, when an execution is scheduled and no stay is in place, the Clerk may select a panel to hear the appeal and any emergency motion whenever in the Clerk’s discretion it would be prudent to do so. Petitions for extraordinary writs and appeals from district court orders which do not finally dispose of the case will be presented initially to a motions panel. (b) Related Civil Proceedings. The court may apply the provisions of Circuit Rule 22 to any related civil proceedings challenging an execution as being in violation of federal law, including proceedings filed by the prisoner or someone else on his or her behalf. (c) Duties. Once a case is assigned to a death penalty panel, the panel will handle all matters pertaining to the case, including motions for leave to file a subsequent petition, appeals from authorized subsequent petitions, any related civil proceedings, and remands from the Supreme Court of the United States. When a case is pending before a death penalty en banc court, any additional applications for relief pertaining to that case will be assigned to the panel with responsibility for that case, unless the question presented is such that its decision would resolve an issue then before the en banc court, in which event the additional application will be assigned to the en banc court. The determination as to whether the case is assigned to the panel or the en banc court is made by the Chief Judge in consultation with the concerned panel and the en banc court. (d) The En Banc Court. The Clerk shall include in the pool of the names of all active judges, the names of those eligible senior judges willing to serve on the en banc court. An eligible senior judge is one who sat on the panel whose decision is subject to review. Judges shall be assigned by random drawing from the pool, and in accordance with Ninth Cir. R. 35-3. Review by the en banc court may include not only orders granting or denying applications for a certificate of appealability and motions to stay or vacate a stay of execution, but may extend to all other issues on appeal. (e) Stays of Execution. Counsel shall communicate with the Clerk of this court by telephone as soon as it becomes evident that emergency relief will be sought from this court. Any motion for a stay of execution filed before a case has been assigned to a death penalty panel will be presented for decision to a motions panel. Once a death penalty panel has been assigned, that panel then must decide all subsequent matters (unless the case is then before the en banc court). If a motion for a stay of execution is presented to a judge of this court not on the death penalty panel rather than to the Clerk of the Court of Appeals, that judge shall refer the motion to the Clerk, unless the execution is imminent. If an execution is imminent and the death penalty panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action. By majority vote, the panel may vacate such a stay of execution. A motion for stay of execution shall state whether relief was sought in the district court and, if so, whether all grounds advanced in support thereof in this court were submitted to the district court and if not, why the matter should not be remanded to the district court or relief denied for that reason. If a majority of the panel votes to deny the stay, it shall enter an order to that effect and, unless impracticable, state the issues presented and the reasons for the denial. If no execution date is set, the ordinary rules for obtaining en banc review of a three-judge panel decision shall apply on a first petition or motion. When the panel affirms a denial or reverses a grant of a first petition or motion, it shall enter an order staying the mandate pursuant to Fed. R. App. P. 41(b). If the panel affirms the denial of a first 2254 petition or 2255 motion in a capital case and denies a stay of execution, any judge of the court may request en banc rehearing and issue a temporary stay of execution. CIRCUIT RULE 22-3 APPLICATIONS FOR LEAVE TO FILE SECOND OR SUCCESSIVE 2254 PETITION OR 2255 MOTION— ALL CASES; STAY OF EXECUTION—CAPITAL CASES (a) Applications. Any petitioner seeking leave to file a second or successive 2254 petition or 2255 motion in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. §§ 2244 or 2255. An original and five copies of the application must be filed with the Clerk of the Court of Appeals. No filing fee is required. If a second or successive petition or motion, or an application for leave to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. The application must: (1) include a copy of the second or successive 2254 petition or 2255 motion which the applicant seeks to file in the district court; and (2) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and (3) state how the requirements of sections 2244(b) or 2255 have been satisfied. (b) Excerpts of Record. If reasonably available to the petitioner, the application must include copies of all relevant state court orders and decisions and all dispositive district court orders in prior federal proceedings. If excerpts of record filed by petitioner are incomplete, respondent may file a supplemental excerpt of record. (c) Service. The petitioner must serve a copy of the application and all attachments on the respondent, and must attach a certificate of service to the application filed with the court. (d) Response. In noncapital cases, no response is required unless ordered by the court. In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental excerpts as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental excerpts within seven (7) calendar days of the date the application is served. (e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the court will grant or deny the application, and state its reasons therefore, as soon as practicable. (f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel as soon as practicable. If the court grants leave to file a second or successive application, the court shall stay petitioner’s execution pending disposition of the second or successive petition by the district court. CIRCUIT RULE 22-4 APPEALS FROM AUTHORIZED SECOND OR SUCCESSIVE 2254 PETITIONS OR 2255 MOTIONS

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