(1) Automatic Stay. In any case in which a death sentence
has been imposed by a federal or state court within the
circuit, execution of the death sentence is automatically
stayed upon (A) the filing of a direct appeal from a
judgment imposing a death sentence, or (B) the filing of a
notice of appeal from the denial of either the first
application for a writ of habeas corpus or the first motion
under 28 U.S.C. § 2255. The clerk must promptly enter an
order implementing the stay. Unless vacated or modified, the
stay provided by this subparagraph remains in effect until
the issuance of this court’s mandate. A party seeking to
extend the stay of execution pending the filing of a
petition for certiorari must also seek to
stay the mandate under FRAP 41.
(2) Other Stays; Duration. Any judge of a panel assigned to
a death penalty case may order a stay of any duration up to
the issuance of the mandate. A party seeking to extend the
stay of execution pending the filing of a petition for
certiorari must also seek to stay the mandate under FRAP 41.
(3) Stays in Relation to a Petition for Rehearing.
(A) A petition for rehearing, when accompanied by a
petition for rehearing en banc, is circulated
simultaneously to all active judges and the panel assigned
to the death penalty case. A judge participating in the
petition for rehearing en banc may immediately vote on a
stay of execution of a death sentence, without waiting for
the assigned panel to act on the petition for rehearing.
(B) A stay of execution of a death sentence pending
disposition of a petition for rehearing, when accompanied
by a petition for rehearing en banc, is granted upon the
affirmative vote of any two judges eligible to participate
in rehearing en banc.
(4) Documents Required for Motions for Stay or to Vacate
Stay. On a motion for a stay of execution of a death
sentence or to vacate a stay, the movant must attach a copy
of each document listed below (if it exists) to the original
and to each copy of the motion, except in the following
circumstances: (A) if time does not permit, in which case
the movant must file the required attachments as soon as
possible; or (B) if the motion reports the stated intention
of the State or the U.S. Attorney not to oppose a temporary
stay for the purpose of deciding the motion, in which case
the movant must file the necessary attachments within 10
days after filing the motion.
- The indictment or other accusatory instrument;
- The judgment of conviction containing the sentence of
death;
- The application or complaint filed in the district court;
- The opinion of the district court setting forth the
reasons for granting or denying relief;
- The district court judgment granting or denying relief;
- The district court order granting or denying a stay, and
the statement of reasons for its action;
- The certificate of appealability or order denying a
certificate of appealability;
- Each state or federal court opinion or judgment bearing
on the issues presented in the motion in cases in which
the appellant was a party;
- The docket entries of the district court; and
- The notice of appeal.
(5) Emergency Motion. An emergency motion for a stay must be
filed in accordance with LR 27.1(d). The motion must contain
a brief account of this court’s prior actions, if any, and
the name of the judge or judges involved in those prior
actions.
(6) Filing with the Clerk. All stay motions must be filed
with the clerk. If the court orders a stay of execution, the
clerk will issue a written order in the name of the court
specifying the duration of the stay.
(7) Off-Hours Filing. When a notice of appeal is filed in a
death penalty case, the clerk designates a staff member to
receive emergency stay motions during nonbusiness hours. The
staff member immediately advises the panel assigned to the
death penalty case of the filing of an emergency stay motion.
(8) Limits on Stays of Execution. Notwithstanding any
provision of this paragraph (c), this court will not grant
or maintain stays of execution except in accordance with
federal statutes or other governing law.
