Capital Cases

(a) Applicability of Rule. This rule shall govern all matters in which this Court is requested to rule in any case where the death penalty has been imposed, including, but not limited to, the following: (1) direct criminal appeals; (2) appeals from District Court rulings, such as on motions to vacate a sentence, petitions for a writ of habeas corpus, and requests for a stay or other injunction; (3) original petitions for a writ of habeas corpus; (4) motions for second or successive habeas corpus applications; (5) any related civil proceedings challenging the conviction or sentence of death, or the time, place or manner of execution, as being in violation of federal law, whether filed by the prisoner or by someone else on his or her behalf. Such cases shall be referred to herein as "capital cases" and shall be governed by this rule, except where otherwise specified in a written order by the Court. To the extent that any local rule of this Court is inconsistent with this rule, this rule shall govern.

All local rules of this Court, including interim local rules, are otherwise as applicable to capital cases as they would have been absent this rule. (b) Certificate of Death Penalty Case. A special docket shall be maintained by the Clerk of this Court for all cases filed pursuant to this rule. (1) Filing.

Upon the filing of any proceeding in any District Court in this Circuit challenging a sentence of death imposed pursuant to a federal or a state court judgment, each party to such proceeding shall file a Certificate of Death Penalty Case with the Clerk of this Court. The U.S. Attorney shall file a Certificate of Death Penalty Case with the Clerk of this Court immediately upon notifying the District Court of intent to seek the death penalty in a federal criminal case. The U.S. Attorney shall also update the Certificate immediately upon return of a verdict imposing a sentence of death. (2) Content of the Certificate.

The Certificate shall set forth the names, telephone numbers and addresses of the parties and counsel, the proposed date and place of implementation 100 of the sentence of death, if set, and the emergency nature of the proceedings, if appropriate. It shall be the responsibility of counsel for all parties to apprise the Clerk of this Court of any changes in the information provided on the Certificate as expeditiously as possible. (c) Certificates of Appealability and Stays. (1) Certificates of Appealability and Motions for Stays.

Certificates of appealability for all habeas matters are addressed in Fed. R. App. P. 22 and Rule 11 of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255. (2) Stays of Execution. (A) Except where otherwise prohibited by 28 U.S.C. § 2262, a sentence of death shall automatically be stayed upon the filing of a notice of appeal. In cases where the petitioner is seeking leave to file a second or successive application under 28 U.S.C. § 2254 or § 2255, a stay of execution shall automatically be issued upon approval by the Court of Appeals of the filing of a second or successive application under 28 U.S.C. § 2244(b).

The Clerk shall immediately notify all parties and the state or federal authorities responsible for implementing the defendant's sentence of death of the stay of execution. If notification is oral, it shall be followed as expeditiously as possible by written notice. (B) Except where otherwise required by law or specified in a written order by the Court, an automatic stay of execution shall remain in effect until the Court issues its mandate, at which time the automatic stay shall expire. In the event that a motion requesting a stay of mandate is filed, the motion should also be accompanied by a motion requesting a case-specific stay of execution.

(C) The assigned panel may grant or modify or vacate any stay of execution at any time and will consider upon request motions for a case-specific stay of execution. All motions for a case specific stay of execution must be accompanied by a memorandum of law, which must include at a minimum the prevailing standards of review and any relevant facts to advise the Court's decision. (D) Upon making the necessary findings, the Court may enter a case-specific stay of execution which shall clearly specify the duration of the stay. (E) The Clerk shall send notice to all the parties and state or federal authorities responsible for implementing the defendant's sentence of death when a stay imposed by this provision, be it automatic or case-specific, is no longer in effect.

101 Appendix of Forms 102 Form 1A. Notice of Appeal to a Court of Appeals From a Judgment of a District Court UNITED STATES DISTRICT COURT for the District of A.B., Plaintiff v. C.D., Defendant Notice of Appeal (name all parties taking the appeal)* appeal to the United States Court of Appeals for the Circuit from the final judgment entered on (state the date the judgment was entered). (s) Attorney for Address: [Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration along with this Notice of Appeal.] * See Rule 3(c) for permissible ways of identifying appellants. 103 Form 1B.

Notice of Appeal to a Court of Appeals From an Appealable Order of a District Court UNITED STATES DISTRICT COURT for the District of A.B., Plaintiff v. C.D., Defendant Notice of Appeal (name all parties taking the appeal)* appeal to the United States Court of Appeals for the Circuit from the order (describe the order) entered on ____________(state the date the order was entered). (s) Attorney for Address: [Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration along with this Notice of Appeal.] * See Rule 3(c) for permissible ways of identifying appellants. 104 Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court UNITED STATES TAX COURT Washington, D.C. Docket No. ____________________ ) A.B., Petitioner ) v. Commissioner of ) Internal Revenue, ) Respondent ) Notice of Appeal to the United States Court of Appeals for the entered on (state the date the decision was entered).

Circuit from the decision (here name all parties taking the appeal)* appeal (s) _____________________________________ Counsel for:_______________________________ Address: _________________________________ * See Rule 3(c) for permissible ways of identifying appellants. 105 Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT A.B., Petitioner v. XYZ Commission, Respondent Petition for Review (here name all parties bringing the petition)* hereby petitions the court for review of the Order of the XYZ Commission (describe the order) entered on , 20 . (s) Attorney for Petitioners Address: * See Rule 15.

106 Form 4. Affidavit Accompanying Motion for Permission to Appeal in Forma Pauperis UNITED STATES DISTRICT COURT for the District of A.B., Plaintiff, Petitioner V. C.D., Defendant, Respondent Civil Action No. AFFIDAVIT ACCOMPANYING MOTION FOR PERMISSION TO APPEAL IN FORMA PAUPERIS Affidavit in Support of Motion Instructions I swear or affirm under penalty of perjury that, because of my poverty, I cannot prepay the docket fees of my appeal or post a bond for them. I believe I am entitled to redress. I swear or affirm under penalty of perjury under United States laws that my answers on this form are true and correct.

(28 U.S.C. § 1746; 18 U.S.C. § 1621.) Complete all questions in this application and then sign it. Do not leave any blanks: if the answer to a question is “0,” “none,” or “not applicable (N/A),” write in that response. If you need more space to answer a question or to explain your answer, attach a separate sheet of paper identified with your name, your case’s docket number, and the question number. Signed: Date: My issues on appeal are: 1.

For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly amount during the past 12 months You Spouse Amount expected next month You Spouse Employment Self-employment $ $ $ $ $ $ $ $ 107 Income from real property (such as rental income) Interest and dividends Gifts Alimony Child support Retirement (such as social security, pensions, annuities, insurance) Disability (such as social security, insurance payments) Unemployment payments Public-assistance (such as welfare) Other (specify): Total monthly income: $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ 2.

List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay 3. List your spouse’s employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay 108 4.

How much cash do you and your spouse have? $ 5. Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial institution Type of account Amount you have Amount your spouse has If you are a prisoner seeking to appeal a judgment in a civil action or proceeding, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account.

6. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Home (Value) Other real estate Motor vehicle #1 (Value) (Value) Make and year: Model: Registration #: Other assets (Value) Motor vehicle #2 Other assets (Value) (Value) Make and year: Model: Registration #: 7.

State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse money Amount owed to you Amount owed to your spouse 109 8. State the persons who rely on you or your spouse for support. Name [or, if under 18, initials only] Relationship Age 9.

Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Your Spouse Rent or home-mortgage payment (include lot rented for mobile home) Are real estate taxes included? [ ] Yes ] Yes Is property insurance included? [ ] No ] No [ [ Utilities (electricity, heating fuel, water, sewer, and telephone) Home maintenance (repairs and upkeep) Food Clothing Laundry and dry-cleaning Medical and dental expenses Transportation (not including motor vehicle payments) Recreation, entertainment, newspapers, magazines, etc. Insurance (not deducted from wages or included in mortgage payments) Homeowner’s or renter’s: Life: Health: Motor vehicle: Other: 110 $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Taxes (not deducted from wages or included in mortgage payments) (specify): Installment payments Motor vehicle: Credit card (name): Department store (name): Other: Alimony, maintenance, and support paid to others Regular expenses for operation of business, profession, or farm (attach detailed statement) Other (specify): Total monthly expenses: $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ 10.

Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? [ ] Yes [ ] No If yes, describe on an attached sheet. 11. Have you spent — or will you be spending — any money for expenses or attorney fees in connection with this lawsuit? [ ] Yes [ ] No If yes, how much? 12.

Provide any other information that will help explain why you cannot pay the docket fees for your appeal. 12. State the city and state of your legal residence: Your daytime phone number: ( ) Your age: Your years of schooling: 111 Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or a Bankruptcy Appellate Panel UNITED STATES DISTRICT COURT for the District of , Debtor In re Plaintiff v. Defendant , , File No Notice of Appeal to the United States Court of Appeals for the First Circuit , the plaintiff [or defendant or other party] appeals to the United States Court of Appeals for the First Circuit from the final judgment [or order or decree] of the district court for the district of [or bankruptcy appellate panel of the First Circuit], entered in this case on judgment, order, or decree] [here describe the , .

The parties to the judgment [or order or decree] appealed from and the names and addresses of their respective attorneys are as follows: Dated Signed Address: Attorney for Appellant [Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration along with this Notice of Appeal.] 112 Form 6. Certificate of Compliance With Type-Volume Limit Certificate of Compliance With Type-Volume Limit, Typeface Requirements, and Type-Style Requirements 1. This document complies with [the type-volume limit of Fed. R. App. P. [insert Rule citation; e.g., 32(a)(7)(B)]] [the word limit of Fed. R. App. P. [insert Rule citation; e.g., 5(c)(1)]] because, excluding the parts of the document exempted by the Fed. R. App. P. 32(f) [and [insert applicable Rule citation, if any]]: ◻ this document contains [state the number of] words, or ◻ this brief uses a monospaced typeface and contains [state the number of] lines of text. 2.

This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because: this document has been prepared in a proportionally spaced typeface using [state name ◻ and version of word-processing program] in [state font size and name of type style], or ◻ this document has been prepared in a monospaced typeface using [state name and version of word-processing program] with [state number of characters per inch and name of type style]. (s) Attorney for Dated: 113 Form 7. Declaration of Inmate Filing [insert name of court; for example, United States District Court for the District of Minnesota] A.B ., Plaintiff v. C.D., Defendant Case No. I am an inmate confined in an institution. Today, [insert date], I am depositing [insert title of document; for example, "notice of appeal"] in this case in the the institution's internal mail system.

First-class postage is being prepaid either by me or by the institution on my behalf. I declare under penalty of perjury that the foregoing is true and correct (see 28 U.S.C. § 1746; 18 U.S.C. § 1621). Sign your name here Signed on [insert date] [Note to inmate filers: If your institution has a system designed for legal mail, you must use that system in order to receive the timing benefit of Fed. R. App. P. 4(c)(1) or Fed. R. App. P. 25(a)(2)(A)(iii).] 114 Appendix: Length Limits Stated in the Federal Rules of Appellate Procedure This chart summarizes the length limits stated in the Federal Rules of Appellate Procedure. Please refer to the rules for precise requirements, and bear in mind the following: • • In computing these limits, you can exclude the items listed in Rule 32(f).

If you use a word limit or a line limit (other than the word limit in Rule 28(j , you must file the certificate required by Rule 32(g). • For the limits in Rules 5, 21, 27, and 40: - You must use the word limit if you produce your document on a computer; and - You must use the page limit if you handwrite your document or type it on a typewriter. • For the limits in Rule 28.1, 29(a)(5), and 32: - You may use the word limit or page limit, regardless of how you produce the document; or - You may use the line limit if you type or print your document with a monospaced typeface. A typeface is monospaced when each character occupies the same amount of horizontal space. Rule Document type Word limit Page limit 5(c) • Petition for permission 5,200 20 Permission to appeal Extraordinary writs 21(d) Motions 27(d)(2) to appeal • Answer in opposition • Cross-petition • Petition for writ of mandamus or prohibition or other extraordinary writ • Answer • Motion • Response to a motion 7,800 30 5,200 20 27(d)(2) • Reply to a response to a 2,600 10 motion 115 Line limit Not applicable Not applicable Not applicable Not applicable 32(a)(7) • Principal brief 32(a)(7) • Reply brief 13,000 6,500 30 15 1,300 650 28.1(e) • Appellant's principal 13,000 30 1,300 Parties' briefs (where no cross-appeal) Parties' brief (where cross- appeal) brief • Appellant's response and reply brief • Appellee's principal and response brief • Appellee's reply brief 28.1(e) 28.1(e) 15,300 6,500 350 One-half the length set by the Appellate Rules for a party's principal brief 2,600 35 15 1,500 650 Not applicable Not applicable One-half the length set by the Appellate Rules for a party's principal brief One-half the length set by the Appellate Rules for a party's principal brief Not applicable Not applicable 28(j) Party's supplemental letter Amicus briefs 29(a)(5) • Letter citing supplemental authorities • Amicus brief during initial consideration of case on merits 29(b)(4) • Amicus brief during consideration of whether to grant rehearing Not applicable Rehearing and en banc filings 40(d)(3) • Petition for initial 3,900 15 hearing en banc • Petition for panel rehearing; petition for rehearing en banc • Response if requested by the court 116 First Circuit Internal Operating Procedures Introduction This publication outlines the procedures followed in this Court, and its Clerk's Office, for the processing of appeals, petitions for review and other appellate matters in this Circuit. New techniques and procedures are continually tried and, when improvements are found, such procedures are adopted so that at any given time the procedures set forth herein may be in a state of change.

Internal Operating Procedure I. Court Organization A. Facilities. The Clerk's Office and the appellate courtrooms are located in the John Joseph Moakley United States Courthouse at 1 Courthouse Way in Boston. The staff attorneys, the Court of Appeals library, the Circuit Executive and some of the appellate judges are located in the courthouse.

B. Clerk's Office.

The office hours for the Clerk's Office are from 8:30 a.m. to 5:00 p.m., Monday through Friday. In case of an emergency, the Clerk or the Chief Deputy Clerk may be contacted after hours; however, appropriate arrangements should be made with the Clerk's Office in advance. Although documents may be filed electronically at any time through the court's Case Management/Electronic Case Files (“CM/ECF”) system, the filer should not expect that the filing will be addressed outside regular business hours unless the filer contacts the Clerk's Office in advance to make special arrangements.

C. Library.

The Court of Appeals library is open from 8:30 a.m. to 5:00 p.m. and attorneys practicing in the federal courts may use the library, but books and materials may not be removed.

D. Staff Attorneys.

The office of the staff attorneys assists the Court in many ways including research, drafting memoranda and other forms of legal assistance to the Court. Internal Operating Procedure II. Attorneys A. Admission. Attorneys seeking admission to the bar of the First Circuit Court of Appeals should obtain an application from the court’s website at www.ca1.uscourts.gov or write to the Clerk's Office.

The admission fee imposed by Local Rule 46.0(a) (1) is $50.00. There is an additional admission fee prescribed by the Court of Appeals Miscellaneous Fee Schedule, promulgated under 28 U.S.C. § 1913. Absent a waiver from the Clerk’s Office, attorneys must file their application form electronically and pay the combined fee electronically using the Court's Case Management/Electronic Case Files ("CM/ECF") system. Once verification of the application is complete, which may take up to 7 days, a Certificate of 117 Admission will be returned by mail.

Incomplete applications will not be considered. Requests to be admitted in person must be made on the application form and will be allowed at the Court's discretion. Successful applicants to be admitted in court will be electronically notified of the time and place of admission. Such applicants will receive their Certificate of Admission by mail at a later date.

Where an application raises questions about the applicant's qualification for admission, the Clerk will refer the matter to the Chief Judge. If the Chief Judge concludes that denial may be warranted, the matter will be referred to a panel for determination.

B. Discipline.

Procedures to be followed in this Court are covered by Fed. R. App. P. 46(b) and the Rules of Attorney Disciplinary Enforcement for the Court of Appeals for the First Circuit. Copies of the latter rules may be obtained at the Clerk's Office. Internal Operating Procedure III. Initial Procedures A. Appeals, Petitions for Review and Fees.

In cases appealed from the district court, the notice of appeal is filed in the district court in accordance with the Fed. R. App. P. and the combined docketing and filing fees are paid to the district court clerk. In administrative agency cases and petitions for mandamus, the docketing fee is paid to the Clerk of the Court of Appeals at the time the petition is filed in the Court of Appeals. The relevant fees can be found in the Schedule of Fees posted on this court's website at www.ca1.uscourts.gov.

B. Ordering Transcripts.

The transcripts must be ordered from the court reporter(s) on Transcript Order/Report Form which is available from the district court clerks and from the Clerk of the Court of Appeals. The order for the transcript must be given within 14 days after the filing of the notice of appeal and satisfactory financial arrangements must be made with the court reporter. See Fed. R. App. P. 10, 11; 1st Cir.

R. 10.0.

Counsel are required to complete these arrangements before the copy of the Transcript Order/Report is filed with the Court of Appeals. If counsel are being paid under the Criminal Justice Act (“CJA”), the CJA form must first be approved and then attached to the Transcript Order/Report Form.

C. Reporter's Duties.

If the reporter cannot complete the transcript by the date set by the court, then pursuant to Fed. R. App. P. 11(b) the reporter must file a motion in the Court of Appeals for an enlargement of time for filing the transcript. Counsel for appellants, however, would be well advised to check with the court reporter to see that the transcript will be timely filed and that the reporter is making such a request, if it will not be so completed. Internal Operating Procedure IV. Docketing Procedures A. Docketing.

Pursuant to Fed. R. App. P. 12, appeals are docketed in the Court of Appeals upon receipt from the Clerk of the district court of copies of the notice of appeal and the district court docket report. If the docketing fee has not been paid in the district court, the failure to pay is grounds for dismissal of the appeal pursuant to Local Rule 3.0. Local Rule 3.0 also requires the filing of a Docketing Statement within 14 days after the case is docketed in the court of appeals. 118 B. Screening.

In the First Circuit a preliminary screening takes place upon the docketing of the appeal and procedural defects are often called to the Court's attention for sua sponte action by the Court including dismissal of the appeal.

C. Briefing.

Once the record on appeal is complete, including the filing of all necessary transcripts, the Clerk's Office sends to counsel a notice advising appellant of the filing dates for the brief and the appendix. After the brief for appellant is filed, the Clerk's Office likewise gives notice to the appellee. Internal Operating Procedure V. Motion Procedures A. General. In accordance with Fed. R. App. P. 27(d) (3), all motions must be accompanied by 3 copies unless the motion is filed electronically in compliance with the court’s electronic filing system, and a proof of service showing the type of service that was made, i.e., by mail or by hand delivery or electronically.

The date of service establishes the due date for filing the response per Fed. R. App. P. 27(a)(3).

B. Processing.

All motions must be filed with the clerk. The single judge matters are transmitted to a single judge and the matters calling for three judge action are transmitted to a three judge panel. The motion judge and the motion panel duties are rotated among the judges of this Court. All motions are decided without oral argument, unless the Court orders otherwise.

The motions are submitted to the Court after the response time provided in Fed. R. App. P. 27(a)(3)(A) has run except for (1) routine procedural motions which are usually processed forthwith, and (2) emergency motions which may be handled on an expedited basis. The court will not ordinarily await the filing of a reply to a response before acting on a motion and response. If a movant intends to file a reply to a response, the movant shall promptly notify the clerk of the intended filing.

C. Disposition By the Clerk.

Pursuant to Fed. R. App. P. 27(b) and 1st Cir. R. 27.0(d), the clerk is authorized to dispose of certain routine, procedural motions in accordance with the Court’s standing instructions. Typical examples include motions for an enlargement of time, to consolidate, to correct filings, to correct captions, and to withdraw as counsel. Effective March 16, 2006, clerk’s orders are identifiable by their form: a clerk’s order states on its face that it is entered pursuant to 1st Cir.

R. 27.0(d).

D. Emergencies.

If counsel anticipates that a matter may arise requiring emergency action by the court outside of ordinary business hours, the court's local rules advise counsel to contact the Clerk’s Office at the earliest opportunity to discuss the matter. Depending on the circumstances, the Clerk’s Office, in consultation with the duty judge and the Staff Attorney’s Office, may make special arrangements for after hours filings and responses, issuance of orders after hours, and similar matters. Counsel are further advised that in all emergency matters, whether or not action outside of ordinary business hours is required, the process is facilitated if counsel contacts the Clerk’s Office in advance and the motion seeking expedited relief clearly indicates the date by which a ruling is requested and the reasons supporting expedition. Although documents may be filed electronically at any time through CM/ECF, 119 the filer should not expect that the filing will be addressed outside regular business hours unless the filer contacts the Clerk's Office in advance to make special arrangements.

The business hours for the Clerk’s Office are Mondays through Fridays from 8:30 a.m. to 5:00 p.m. Internal Operating Procedure VI. Briefs and Appendices A. General. The court's website, www.ca1.uscourts.gov, contains guidelines and a checklist to assist counsel in preparing briefs. Counsel are advised that any brief that does not conform to the requirements of the rules may be rejected.

For information regarding electronic document filing pursuant to the court’s electronic filing system, see 1st Cir.

R. 25.0, a copy of which is available on the court’s website.

Electronic filing is permitted after October 13, 2009 and is required for all attorney filings after January 1, 2010.

B. Modifications.

The following modifications of the Fed. R. App. P. apply in the First Circuit: 1) One copy of the brief or petition must be filed electronically or on a computer generated disk. See 1st Cir.

R. 32.0.

2) Only 10 copies, including the disk or electronic filing, need be filed.

C. Deferred Appendix.

Note the Local Rules of this Court do not provide for the proceeding on a deferred appendix pursuant to Fed. R. App. P. 30(c). If special leave to proceed under this method is sought, and the Court grants such leave, the leave will be conditioned upon a shorter time schedule than the Fed. R. App. P. generally allow so that the processing of the appeal will not take any longer time than it would under the regular procedure.

D. Defaults.

If the appellant fails to file the brief and appendix on time, the Clerk is authorized to enter an order dismissing the appeal, and when an appellee is in default as to filing a brief, the appellee will not be heard at oral argument. The party in default may remove the default by showing special circumstance justifying the failure to comply. Any motion to set aside a dismissal should be filed within fourteen days. See 1st Cir.

R. 45.0.

Internal Operating Procedure VII. Screening and Calendaring A. General. Initially, the staff attorney reviews the briefs in the cases the Clerk has assigned for a particular session. If a panel of 3 judges, in accordance with Fed. R. App. P. 34 and after consultation with the staff attorney, is of the opinion that a case does not warrant oral argument, the Clerk so advises counsel.

Shortly after the decision as to hearing is made, the amount of time to be allotted for oral argument is also set by the Court. Before the hearing list is finally established, the Clerk notifies the parties by letter of the proposed date for hearing the case so that counsel may contact the Clerk if it appears that a scheduling conflict exists. 120 B. Expedited Schedule. Expedited scheduling is provided automatically in those cases where it is required by statute, such as recalcitrant witness cases.

In other cases a request for expedited processing may be filed, but the motion should be made shortly after the case is docketed in the Court of Appeals.

C. Dates of Sessions.

In January through June, and October through December, the Court usually sits for one week starting on the first Monday of the month. In either July or August, the court sits for one week. In September the Court starts on the Wednesday after Labor Day and sits for the 3 days in that week and the 5 days in the following week. In November and March the Court sits two weeks, with one week in Boston and one week in Puerto Rico.

D. Judges and Case Assignment.

In accordance with long-standing practice, cases are assigned to panels on a random basis provided, however, that a case may be assigned to a particular panel or to a panel including a particular judge in the following circumstances: 1) where the case is a sequel to, or offshoot of, a case previously decided by the court (e.g., following a remand); 2) where the case was presented to the duty panel in the regular course of duties, see, e.g., Bui v. DiPaolo, 170 F.3d 232, 238 (1st Cir. 1999) ("[a]s an administrative measure, we advise litigants that, to the extent practicable, the panel that determines whether to issue a complementary COA also will be the panel that adjudicates the appeal on the merits"), cert. denied, 529 U.S. 1086 (2000); 3) where a case has been assigned to a panel, but scheduling changes (e.g., postponement of oral argument) or changes in the procedural handling of the case (e.g., a case intended for summary disposition is thereafter set for oral argument) require rescheduling; 4) where a case has been assigned to a panel, but the subsequent recusal of a judge (or other unavailability of a judge, e.g., due to illness) makes it appropriate to transfer the case to a different panel or to find a replacement judge. No other non-random assignments of cases shall be made except for special cause and with the concurrence of the duty judge.

E. Judges and Case Assignment in Capital Cases.

1) Capital Case Panel. Capital cases, as defined in Local Rule 48.0, shall be randomly assigned to a panel of three judges, of whom at least one is an active judge of this Court, from the capital case pool. The capital case pool of judges shall consist of all active judges of this Court and those senior judges who have filed with the Clerk a statement of willingness to serve on capital case panels. 2) Duties of Capital Case Panel.

Notwithstanding the practices identified in Internal Operating Procedure V, the assigned capital case panel handles all matters relating to the case, including but not limited to, the merits of a direct appeal, all case management, all petitions for collateral review, motions for stay of execution, motions to vacate a stay of 121 execution, applications for a certificate of appealability, motions for an order authorizing the district court to consider a second or successive application for habeas corpus, appeals from subsequent petitions, and remands from the United States Supreme Court.

F. Timing.

The Court will hear up to six cases per day. Generally, it is the practice of this Court to schedule cases in which the brief for appellee is filed by the fifteenth day of one month, so as to have the case screened and assigned to the list for hearing or submission on the second month thereafter. Internal Operating Procedure VIII. Oral Argument A. General.

The Court establishes the times allotted for oral argument and the Clerk so notifies the parties at least one week before argument starts. Though the calendar is not called at the beginning of the court day, counsel should be present at the opening or make arrangements to ascertain whether there is any change in the order of the cases at the opening of Court. It is counsel's responsibility to be present and be prepared should earlier cases take less time for oral argument than was anticipated. See 1st Cir.

R. 34.1.

B. Disclosure of Panel in Advance of Oral Argument.

The names of the judges on each panel may be disclosed for a particular session seven (7) days in advance of the session. Once the panel is made public, the Court will not normally grant motions for continuances or for a change in argument date during the same session.

C. Lights.

The signal lights are located on the Clerk's desk and they are set so that an amber light turns on when there are five minutes left and it remains on until the red light turns on indicating that the time for oral argument has ended.

D. Recording.

Oral arguments in all cases are digitally recorded for the use of the Court and are not part of the permanent record of the case. A disk copy of the recording of an oral argument may be obtained by submitting a request in writing to the Clerk with a check in the amount prescribed by the Judicial Conference of the United States. The Schedule of Fees is posted on this court's website at www.ca1.uscourts.gov. Audio recordings of the court's oral arguments are also available on the court's website.

Internal Operating Procedure IX. Opinions & Judgments A. Processing. When the opinion of the Court (and concurring and dissenting opinions, if any) are completed, they are turned over to the Clerk for reproducing and release. Copies of the opinion and copies of the judgment are sent to one counsel for each side.

They are also released in electronic format on the same day.

B. Publication.

The manner of deciding whether an opinion is to be published and the Court's policy with respect to publication are set forth in Local Rule 36.0. 122 C. Electronic Access. The Court’s dockets and opinions are available electronically through the PACER network supported by the Administrative Office for the United States Courts. Details are available in the Clerk’s Office.

Opinions are also available on the court’s website at www.ca1.uscourts.gov. Internal Operating Procedure X. Petitions for Panel Rehearing and Petitions for Hearing or Rehearing En Banc A. General. Fed. R. App. P. 40 should be consulted with respect to the procedures. Petitions for rehearing are intended to bring to the attention of the panel claimed errors in the opinion and they are not to be used for reargument of an issue previously presented.

B. No Response.

Unless the court requests, no response to a petition is permitted.

C. En Banc Processing.

A petition for a hearing or rehearing en banc is submitted by the Clerk to the panel that heard the case and to the other active First Circuit judges. A petition for rehearing en banc will also be treated as a petition for rehearing before the original panel.

D. Vacation of Previous Opinion and Judgment.

Usually when an en banc rehearing is granted, the previous opinion and judgment will be vacated. Internal Operating Procedure XI. Complaints Against Judges The procedure for filing complaints against judges is set forth in the Rules for Judicial-Conduct and Judicial-Disability Proceedings. A copy of these Rules may be obtained from the Clerk of this Court and are also on the Court's website.

Office of the Clerk U.S. Court of Appeals for the First Circuit John Joseph Moakley Courthouse 1 Courthouse Way, Suite 2500 Boston, Massachusetts 02210 Internal Operating Procedure XII. Notification of Changes or Notifications of the Court's Local Rules and Internal Operating Procedures Changes in the Local Rules of this Court or its Internal Operating Procedures will be publicized by circulating for comment the entire text of the proposed change to the following state legal publishers: a. Massachusetts Lawyers Weekly, 10 Milk Street, Suite 1000, Boston, Massachusetts 02108. b. Rhode Island Lawyers Weekly, c/o Massachusetts Lawyers Weekly, 10 Milk Street, Suite 1000, Boston, MA 02108. 123 c. New Hampshire Bar News, 112 Pleasant Street, Concord, New Hampshire 03301. d. Maine Bar Journal, P.O. Box 788, Augusta, Maine 04332. e. Puerto Rico Bar Association, P.O. Box 1900, San Juan, PR 00903. Notice of the changes will also be placed in all federal court bulletin boards and to all state bar associations within the Circuit.

Comments should be forwarded to the Clerk's Office within thirty days from the date of the notice. 124 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ADMINISTRATIVE ORDER REGARDING CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM (“CM/ECF”) ENTERED SEPTEMBER 14, 2009 As of August 21, 2017, amended Local Rule 25.0 superseded the court's September 14, 2009 Administrative Order Regarding Case Management/Electronic Case Files System. Consequently, the court's September 14, 2009 Administrative Order is no longer in effect. 125 Rules of Attorney Disciplinary Enforcement for the Court of Appeals for the First Circuit Effective: August 1, 2002 Amended: April 13, 2011 The Court of Appeals for the First Circuit, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it, or admitted for the purpose of a particular proceeding (pro hac vice), promulgates the following Rules of Attorney Disciplinary Enforcement superseding all of its other Rules pertaining to disciplinary enforcement heretofore promulgated.

Attorneys Convicted of Crimes.

RULE I A.

Upon filing with this Court of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the Court has been convicted in any Court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States of a serious crime as hereinafter defined, the Chief Judge shall refer the matter to a disciplinary panel. The disciplinary panel shall enter an order immediately suspending that attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of any appeal, until final disposition of a disciplinary proceeding to be commenced upon such conviction. A copy of such order shall immediately be served by the Clerk of this Court upon the attorney personally or by certified or registered mail. Upon motion and good cause shown, the disciplinary panel may set aside such order when it appears in the interest of justice to do so.

B. The term "serious crime" shall include any felony and any lesser crime, a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime." C. Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the disciplinary panel shall, in addition to suspending that attorney in accordance with the provisions of this Rule, also initiate disciplinary proceedings in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that no final disposition will be rendered until all direct appeals from the conviction are concluded. The certified copy of the judgment of conviction shall be conclusive evidence of the commission of that crime by the attorney in question. D. Upon the filing of a certified copy of a judgment of conviction of an attorney for any crime not constituting a "serious crime," the Chief Judge may refer the matter to a disciplinary panel for 126 disciplinary proceedings or may exercise discretion to make no reference with respect to convictions for minor offenses for which discipline would not be appropriate. E. Any attorney suspended under the first paragraph of this Rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction has been vacated or reversed on direct appeal, but the reinstatement shall not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the disciplinary panel on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed.

Discipline Imposed by Other Courts.

RULE II A.

Any attorney admitted to practice before this Court shall, upon being subject to public discipline by any other Court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States, promptly inform the Clerk of this Court of such action. B. Upon filing of a certified copy of a judgment, order, or other official document demonstrating that an attorney admitted to practice before this Court has been publicly disciplined by another court, the Chief Judge shall refer the matter to a disciplinary panel and the Clerk of this Court shall serve on the attorney, personally or by certified or registered mail, a notice containing: 1. a copy of the judgment or order from the other court; and 2. an order to show cause directing that the attorney inform this Court within 30 days after service of the order of any claim predicated upon the grounds set forth in paragraph (C) of this Rule that the imposition of substantially similar discipline on the attorney would be unwarranted and the reasons therefor. The order shall also state that a hearing on such a claim must be requested within 30 days after service of the order. C. Upon the expiration of the time to show cause, if no response has been filed, then the disciplinary panel shall enter an order imposing substantially similar discipline.

If a timely response is filed, the disciplinary panel shall, after any applicable hearing or other proceedings, impose substantially the same discipline imposed by the other court unless the attorney demonstrates, and the disciplinary panel is persuaded: 1. that the procedure used by the other court was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or 2. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or 3. that the imposition of substantially similar discipline by this Court would result in grave injustice; or 127 4. that the misconduct established is deemed by this Court to warrant different discipline. Where the disciplinary panel determines that any of these elements exist, it shall enter such other order as it deems appropriate. D. In all other respects, a final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of any disciplinary proceeding in this Court. Disbarment on Consent or Resignation in Other Courts.

RULE III A.

Any attorney admitted to practice before this Court who shall be disbarred on consent or resign from the bar of any other court of the United States or the District of Columbia, or from the Bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, shall, upon the filing with this Court of a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this Court and be stricken from the roll of attorneys admitted to practice before this Court. B. Any attorney admitted to practice before this Court shall, upon being disbarred on consent or resigning from the bar of any other court of the United States or the District of Columbia, or from the Bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, promptly inform the Clerk of this Court of such disbarment on consent or resignation. Standards for Professional Conduct.

RULE IV A.

For misconduct defined in these Rules, and for good cause shown, and after notice and opportunity to be heard, any attorney admitted to practice before this Court may be disbarred, suspended from practice before this Court, reprimanded or subjected to such other disciplinary action as the circumstances may warrant. B. Acts or omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which violate the Code of Professional Responsibility, either of the state, territory, commonwealth or possession of the United States in which the attorney maintains his principal office; or of the state, territory, commonwealth or possession of the United States in which the attorney is acting at the time of the misconduct; or of the state in which the circuit maintains its Clerk's Office, shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of the attorney-client relationship. The Code of Professional Responsibility means that code adopted by the highest court of the state, territory, commonwealth or possession of the United States, as amended from time to time by that court, except as otherwise provided by specific Rule of this Court after consideration of comments by representatives of bar associations within the state, territory, commonwealth or possession of 128 the United States. Failure to comply with the Federal Rules of Appellate Procedure, the Local Rules of this Court, or the orders of this Court may also constitute misconduct and be grounds for discipline.

Disciplinary Proceedings.

RULE V A.

When misconduct or allegations of misconduct on the part of an attorney admitted to practice before this Court shall come to the attention of a Judge or officer of this Court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the Judge or officer shall refer the matter to the Chief Judge for initial review. If the Chief Judge determines that misconduct is alleged which, if substantiated, would warrant discipline by this Court, the Chief Judge shall refer the matter to a disciplinary panel; if not, the Chief Judge may dismiss the matter. A disciplinary panel shall consist of three judges of this Court, whether active or senior, appointed by the Chief Judge. The Chief Judge may serve as a member of the disciplinary panel.

In the absence of the Chief Judge, the active judge most senior in service on the Court serves as chair. If no active judge is on the disciplinary panel, the Chief Judge shall appoint the chair. The disciplinary panel may at any time appoint counsel to investigate or to prosecute any disciplinary matter. In a matter in which the Chief Judge is recused, references to "Chief Judge" shall mean the senior active judge who is not recused.

B. If the disciplinary panel determines that cause may exist for disciplinary action, the disciplinary panel will direct the Clerk of the Court to issue an order to the attorney in question to show cause why (1) specified discipline should not be imposed or (2) discipline to be determined later should not be imposed. The order shall be served on the attorney personally or by certified or registered mail, shall notify the attorney of the alleged conduct and the reason the conduct may justify disciplinary action, and shall direct that 5 copies of a response, including any supporting evidence or request for a hearing, be filed within 30 days of service of the order or such other time as the order may specify. The Clerk shall also append a copy of these rules to the order. In any response to the order, the attorney must also (a) include an affidavit listing the other bars to which the attorney is admitted, (b) note which if any of the facts alleged are controverted, and (c) specify the basis on which any controverted facts are disputed.

If the disciplinary panel determines on initial investigation and review that cause does not exist for disciplinary action, the disciplinary panel may dismiss the matter. C. If the attorney fails to timely respond to an order to show cause, or if the attorney's timely response to the order to show cause does not specifically request to be heard in person, the disciplinary panel may direct entry of an order imposing discipline or take any other appropriate action. If the attorney specifically requests to be heard in person, either in defense or in mitigation, the disciplinary panel shall set the matter for such hearing as is appropriate under the circumstances. The disciplinary panel may itself order a hearing whether or not one is requested.

Following such a hearing and the receipt of any findings or recommendation that may be required and any further submissions that the disciplinary panel may invite, the disciplinary panel may direct entry of an order imposing discipline or take any other appropriate action. 129 D. If a hearing is ordered, the disciplinary panel may conduct the hearing itself or designate a special master (including but not limited to a district judge or magistrate judge serving within the circuit) for purposes of conducting any hearing. The disciplinary panel (or the special master, subject to the instruction of the disciplinary panel) may in its discretion adopt appropriate procedural and evidentiary rules for any such hearing. At the conclusion of a hearing held before a special master, the special master shall promptly make a report of findings and--if directed by the disciplinary panel--recommendations to the disciplinary panel.

A copy of the report and any recommendations shall be made available to the attorney under investigation. The disciplinary panel may reject or adopt the findings and/or recommendations of the special master in whole or part. E. Any attorney may file a petition for rehearing by the disciplinary panel or a combined petition for rehearing by the disciplinary panel and suggestion for rehearing en banc by the active judges of the Court. Similarly, the attorney may seek a stay of any disciplinary order entered by the disciplinary panel, the stay to be sought from the disciplinary panel in the first instance and thereafter if desired by the attorney from the Court en banc.

The procedures for any such petition will be in accordance with the Federal Rules of Appellate Procedure and the Local Rules of this Court. If en banc review is granted, any senior judge shall be eligible to be a member of the en banc Court, at that judge's election, in the circumstances specified in 28 U.S.C. § 46(c). F. At any time, the disciplinary panel may in its discretion refer a disciplinary matter pending before it to an appropriate state bar association or state disciplinary board. In such a case, the disciplinary panel is free to dismiss the matter or hold its own proceedings in abeyance pending the completion of the state disciplinary proceedings.

Nothing in these rules prevents any disciplinary panel, Judge, or officer of this Court from bringing disciplinary matters to the attention of the appropriate state disciplinary authorities. G. The provisions of this Rule shall govern disciplinary proceedings addressed to misconduct as defined in Rule IV, and shall also apply to any proceedings under Rule I (Attorneys Convicted of Crimes), Rule II (Discipline Imposed by Other Courts), and Rule VII (Reinstatement) to the extent not inconsistent with the express provisions of those rules.

RULE VI

Disbarment on Consent While Under Disciplinary Investigation or Prosecution. A. Any attorney admitted to practice before this Court who is the subject of an investigation into, or a pending proceeding involving, allegations or misconduct may consent to disbarment, but only by delivering to this Court an affidavit stating that the attorney desires to consent to disbarment and that: 1. the attorney’s consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting; 130 2. the attorney is aware that there is a presently pending investigation or proceeding involving allegation that there exist grounds for the attorney’s discipline the nature of which the attorney shall specifically set forth; 3. the attorney acknowledges that the material facts so alleged are true; and 4. the attorney so consents because the attorney knows that if charges were predicted upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself. B. Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney. C. The order disbarring the attorney on consent shall be a matter of public record.

However, the affidavit required under the provisions of this Rule shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court. Reinstatement.

RULE VII A.

Unless this Court’s suspension order provides otherwise, an attorney who seeks to resume practice before this Court after being disbarred or suspended under these rules must petition for reinstatement. Petitions for reinstatement shall be filed with the Clerk of this Court and contain a concise statement of the circumstances of the disciplinary proceeding, the discipline imposed by this Court, and the grounds that justify reinstatement of the attorney in question. In accordance with Rule V, the Chief Judge shall conduct an initial review, and, as warranted, dismiss the petition or refer it to a disciplinary panel. After whatever investigation it sees fit, the disciplinary panel may set the matter for whatever hearing it deems appropriate under the circumstances.

B. The petitioner shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in the law required for admission to practice law before this Court and that the resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive to the public interest. C. If the disciplinary panel finds that the petitioner is unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the disciplinary panel shall enter an order of reinstatement, provided that the disciplinary panel may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment, and the disciplinary panel may impose such other reasonable conditions as it deems meet. Further, if the petitioner has been suspended or disbarred for five or more years, the disciplinary panel may in its discretion condition reinstatement upon the furnishing of proof of competency and learning in the law, which proof may include successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment.

131 D. No petition for reinstatement under this Rule shall be filed within one year following an adverse final judgment upon a petition for reinstatement filed by or on behalf of the same attorney. Attorneys Specially Admitted.

RULE VIII

Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this Court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding. Appointment of Counsel.

RULE IX

Whenever counsel is appointed pursuant to these rules to investigate allegations of misconduct or prosecute disciplinary proceedings or in conjunction with a reinstatement petition filed by a disciplined attorney, a member of the Bar of this Court shall be appointed. Counsel, once appointed, shall not resign without the consent of the disciplinary panel. Duties and Powers of the Clerk.

RULE X A.

The Clerk of this Court shall promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this Court. B. The Clerk of this Court is empowered, upon being informed that any attorney admitted to practice before this Court has been convicted of any crime or has been subjected to discipline by another court, to obtain and file with this Court a certified or exemplified copy of such conviction or disciplinary judgment or order. C. Whenever it appears that any person who is disbarred or suspended or censured or disbarred on consent by this Court is admitted to practice law in any other jurisdiction or before any other court, the Clerk of this Court is empowered, to the extent he deems it desirable and necessary to supplement the action taken under clause A, above, to so advise the disciplinary authority in such other jurisdiction or such other court. Jurisdiction.

RULE XI

Nothing contained in these Rules shall be construed to deny to this Court such powers as are necessary for the Court to maintain control over proceedings conducted before it, such as 132 proceedings for contempt under Title 18 of the United States Code or under Rule 42 of the Federal Rules of Criminal Procedure. Effective Date.

RULE XII

These Rules shall become effective on August 1, 2002, provided that any formal disciplinary proceedings then pending before the Court shall (unless the Court otherwise directs) be concluded under the Rules existing prior to that date. 133 JUD