This rule applies to appellate proceedings involving any authorized second or successive section 2254 petition or 2255 motion. (a) Necessary Documents. If the district court denies an application for a certificate of appealability and/or a stay of execution, and the petitioner seeks relief from the court of appeals, petitioner shall, if he has not already done so, file with the Clerk of the Court of Appeals fifty copies (capital cases) or four copies (noncapital cases) of the following documents: (1) the original application for a certificate of appealability and/or a motion for stay of execution; (2) all papers filed in the subsequent proceeding in district court; (3) all orders issued by the district court in the subsequent proceeding; (4) a copy of any state or federal court opinion or judgment or, if there is no written opinion or judgment, a copy of the relevant portions of the transcript; and (5) a copy of the notice of appeal. If all documents referred to in this provision are not filed with the motion for stay of execution or application for a certificate of appealability, the motion shall state why the documents are unavailable and where they may be obtained. If the applicant does not provide the documents, the respondent shall provide them or state in any response why they are not available. (b) En Banc Review; Notification In Capital Cases. If an execution date is scheduled and imminent, the Clerk shall notify the parties when a request for rehearing en banc is made and of the time frame for voting or, if no such request has been made, the Clerk shall notify the parties upon expiration of the period to request en banc rehearing. Such a request for rehearing en banc shall result in en banc review if a majority of active judges votes in favor of en banc review. If a majority of active judges votes in favor of en banc review, the Clerk shall notify the parties that the matter will receive en banc review, and identify the members of the en banc court. (c) Stays of Execution. If the panel denies a stay of execution upon an appeal from an authorized subsequent section 2254 petition or 2255 motion in a capital case, and the execution date is scheduled and no stay is in place, any judge of the court who requests en banc review may issue a temporary stay of execution. If a majority of active judges does not vote in favor of en banc review, the court shall enter an order vacating the temporary stay. If the matter receives en banc review, the stay shall remain in effect until the en banc court completes voting on the question of a stay. Voting is complete when all judges on the en banc court have been polled and a majority has voted either to grant or deny a stay. If, at the completion of voting, a majority of the en banc court votes to deny a stay, the en banc court will enter an order vacating the temporary stay and no stay will be in effect unless granted by the full court. CIRCUIT ADVISORY COMMITTEE NOTE TO CIRCUIT RULE 22-4 If a prisoner has been granted relief, in whole or in part, a petition or motion challenging a subsequent conviction or sentence shall be considered as a “first petition” or “first motion” and this rule shall apply rather than Rule 22-5. Such a petition or motion will be assigned to the same panel to which the initial petition or motion was assigned. CIRCUIT RULE 22-5 SUBSEQUENT PETITIONS OR MOTIONS; RELATED CIVIL PROCEEDINGS (a) Definitions. This rule shall apply to appellate proceedings involving any subsequent petition for a writ of habeas corpus or motion for relief under § 2255 filed after the district court has entered judgment denying a first petition or first motion, and any amendments thereto, and to any related civil proceeding (including such a petition filed or proceeding initiated by someone other than the prisoner) with respect to the same conviction and sentence in which an execution is currently scheduled. This rule shall also apply to appeals of a petition for habeas corpus or a motion for relief under § 2255 that have been dismissed by the district court for lack of jurisdiction. (b) Records of Other Proceedings. Upon the filing in the district court of a subsequent petition for habeas corpus or motion for relief under § 2255 or a related civil proceeding in a case in which an execution has been scheduled, the prisoner shall lodge forty copies of such pleading with the Clerk of the Court of Appeals. (c) Stays of Execution and Certificates of Probable Cause. If the district court denies an application for a certificate of probable cause and/or a motion for a stay of execution of a sentence of death, the prisoner shall file with the Clerk of the Court of Appeals an original and forty copies of the application for a certificate of probable cause in a proceeding pursuant to 28 U.S.C. § 2254 and the motion for stay of execution, accompanied by forty copies of the following documents: (1) the complaint or petition or motion to the district court; (2) each brief or memorandum of points and authorities filed in the district court that is pertinent to the complaint or petition or motion; (3) the district court’s disposition, including any reasons set forth by the district court in its order; (4) the application to the district court for a stay; (5) the district court order granting or denying a stay pending appeal, and the statement of reasons for its action; (6) the order granting or denying a certificate of probable cause; (7) a copy of any state or federal court opinion or judgment in the case or, if there is no written opinion or judgment, a copy of the relevant portions of the transcript; and (8) a copy of the notice of appeal. The clerk will notify all judges by the most expeditious means of the filing of an application for a certificate of probable cause and/or a stay of execution. (d) Motions for Stays of Execution - Procedures. (1) If all documents referred to in subdivision (c) of this rule are not filed with the motion for stay of execution or application for certificate of probable cause, the motion shall state why the documents are unavailable and where they may be obtained. If the applicant does not provide the documents, the respondent shall provide them or state in any response to the motion for stay of execution why they are not available. (2) Counsel shall adhere to Circuit Rule 27-3 regarding emergency motions, except to the extent that it may be inconsistent with these rules. (3) In a state death penalty case, an application for a certificate of probable cause may be granted by any judge of the court; however, the application should first be presented to the collateral death penalty panel. Oral argument may be held at the request of any member of the panel. Any member of the panel may enter an order granting the application for a certificate of probable cause. If the panel votes unanimously to deny the application, it shall enter an order setting forth the issues presented and the reasons why the certificate of probable cause should not issue. (4) A motion for a stay of execution shall be presented to the panel hearing the case. Oral argument may be held at the request of any member of the panel. If a majority of the panel votes to deny the stay, it shall enter an order setting forth the issues presented and the reasons for the denial. (5) If a motion for a stay of execution is presented to a judge of this court not on the panel rather than to the Clerk of the Court of Appeals, that judge shall refer the motion to the clerk for determination by the panel, unless the execution is imminent. If an execution is imminent and the panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge of the court 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. (6) If a motion for a stay of execution is presented to a judge of this court not on the panel, counsel presenting such motion shall include in the materials presented a declaration that shall reflect: (a) why the motion is being presented to a single judge instead of the Clerk of the Court of Appeals for reference to the panel; (b) the name of any other judge to whom the motion has been presented, including any district judge, and the date when such application was made, and any ruling on the motion; (c) what petitions, applications, motions and appeals are then pending before this court in any case involving the same prisoner, together with a report of the status of each such proceeding. Before presenting such a motion to a single judge, the applicant shall make every practicable effort to notify the clerk and opposing counsel and to serve the motion at the earliest possible time. A certificate of counsel for the applicant shall follow the cover page of the motion and shall contain: (i) the telephone numbers and office addresses of the attorneys for the parties; (ii) facts showing the existence and nature of the claimed emergency; and (iii) when and how counsel for the other parties were notified and served with the motion, or, if not notified and served, why that was not done. If the relief sought was available in the district court, the motion shall state 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 the relief denied for that reason. (e) En Banc Procedures Regarding Certificates of Probable Cause and Stays of Execution. (1) Immediately upon entry of an order granting or denying a certificate of probable cause or a stay of execution, a copy of the order, as well as notice of the scheduled date and time of execution shall be sent by the most expeditious method practicable to the en banc court and all other active judges. (2) Any active or senior judge of the court may request that the en banc court review the panel’s order. The request shall be supported by a statement setting forth the requesting judge’s reasons why the order should be vacated. The clerk shall notify the parties when such a request is made and of the time frame for voting. If no such request has been made, the clerk shall notify the parties upon the expiration of the period to request en banc rehearing. Such a request for rehearing en banc shall result in en banc review if a majority of active judges has voted in favor of en banc review. A judge’s failure to vote within the time established by General Order 5.5(b) shall be considered a “yes” vote in favor of en banc review. The en banc coordinator, if time permits, may set a schedule in which other judges may respond to the points made in the request for en banc review. If a majority of active judges votes in favor of en banc review, the clerk shall notify the parties that the matter will receive en banc review, and will identify the members of the en banc court. (3) If the panel denies a stay of execution, and the execution date is imminent, any judge of the court who requests en banc review may issue a temporary stay of execution. That stay shall lapse and be dissolved if a majority of active judges does not vote in favor of en banc review. A judge’s failure to vote within the time established by General Order 5.5(b) shall be considered a “yes” vote in favor of en banc review. If the matter receives en banc review, the stay shall remain in effect until the en banc court completes voting on the question of granting a stay. Voting is complete when all available judges have been polled and a majority of the en banc court has voted to either grant or deny a stay. If at the completion of voting, a majority of the en banc court has not voted to grant the stay, there will be no stay in effect. (4) Any active judge may request a rehearing of the decision of the en banc court by all the active judges of the court. If no stay is in effect, such judge may issue a temporary stay. The eleven-judge en banc court by majority vote may vacate such a temporary stay, and in that event there will be no stay in effect unless a stay is granted by the full court. Cross Reference: Advisory Committee Note to Circuit Rule 22-4. CIRCUIT RULE 22-6 RULES APPLICABLE TO ALL DEATH PENALTY CASES

Vegas Law