9th Cir. R. 22-4

This rule applies to appellate proceedings involving the denial of any authorized second or

successive (“SOS”) section 2254 petition or 2255 motion in capital proceedings. If the district

court has denied in full an application for a COA for such an appeal, appellant shall file with the

court of appeals a request for a COA. Circuit Rule 22-1 shall apply to the extent not inconsistent

with this rule. (Rev. 12/1/18)

(a) Necessary Documents. An appellant challenging the denial of an authorized SOS

petition or motion and filing a request for a certificate of appealability and/or a stay of

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execution, shall file with the court of appeals the following documents in an attachment

to any COA request:

(1) the original application for permission to file a second or successive section 2254

petition or 2255 motion (“SOS petition”) 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 all relevant state or federal court opinions or judgments or, if there are

no written opinions or judgments, a copy of the relevant portions of the

transcripts; and

(5) a copy of the notice of appeal.

If all documents referred to in this provision are not filed, appellant shall state why the

documents are unavailable and where they may be obtained. If appellant does not provide

the documents, appellee shall provide them or state in any response why they are not

available. (Rev. 12/1/09; 12/1/18)

(b) Emergency Motions. When the district court has denied an authorized SOS petition or

motion and an execution is scheduled and imminent, counsel shall adhere to Circuit Rule

27-3 regarding emergency motions, except to the extent that it may be inconsistent with

these rules. Any such motion will be presented to the panel assigned to the case pursuant

to Circuit Rule 22-2. (New 12/1/09; Rev. 12/1/18)

(c) COA Applications. Where the district court has denied an authorized SOS petition or

motion and denied a COA in full, the Clerk shall refer the motion for a COA to the death

penalty panel. Oral argument may be held at the request of any member of the panel. Any

member of the panel may grant a COA. If the panel votes unanimously to deny a COA in

full, it shall enter an order setting forth the issues presented and the reasons why a COA

should not issue. A copy of the order shall be circulated by the Clerk to all judges. (New

12/1/09; Rev. 12/1/18)

(d) En Banc Review. 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. 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. 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 identify the members of the en

banc court. (New 12/1/09)

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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. (New

12/1/09)

(e) Stays of Execution. Where appellant seeks a stay of execution, any motion for stay of

execution shall be filed electronically, and the Clerk shall refer any such motion to the

death penalty panel. 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. (New 12/1/09; Rev. 12/1/18)

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. (New 12/1/09)

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 either to

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 unless granted by the full court.

(New 12/1/09)

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. (New 12/1/09; Rev. 12/1/18)

If the relief sought was available in the district court, the motion shall state whether all

grounds advanced in support thereof in the court of appeals 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. (New 12/1/09; Rev. 12/1/18)