SPECIAL MASTERS

48.1 Special Masters The court may appoint a master to hold hearings, if necessary, and make recommendations as to any auxiliary matter requiring a factual determination in the court of appeals. If the master is not a court officer, the compensation to be allowed to the master will be fixed by the court, and will be charged upon such of the parties as the court may direct. Source: None Cross-references: FRAP 48 Committee Comments: New provision in 1997. This rule is intended to formalize by rule the court's practice of appointing special masters to resolve factual questions where appropriate and needed by the court.

Table of Contents 48 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 Miscellaneous - 3d Circuit Local Appellate Rules L.A.R. MISC. 101.0 CONSTITUTION OF THE COURT - PANELS - QUORUM 101.1 The Court - Judges who Constitute it The court consists of the circuit judges in regular active service. The circuit justice and other justices and judges so designated or assigned by the chief judge are eligible to sit as judges of the court. Source: 1988 Court Rule 2.1 Cross-references: None Committee Comments: Prior Court Rule 2.1 has no counterpart in FRAP and is therefore classified as Miscellaneous.

No substantive change from prior Court Rule 2.1 is intended. 101.2 Quorum - Adjournment in Absence of - By Whom Adjourned A majority of the number of judges authorized to constitute the court or a panel thereof constitutes a quorum. When necessary, a judge may attend via audio or video conference. If a quorum does not attend on any day appointed for holding a session of the court or a panel thereof, any judge who does attend may adjourn the court or panel, or, in the absence of any judges, the clerk may adjourn the court or panel.

Source: 1988 Court Rule 2.5 Cross-references: 28 U.S.C. § 46(d) Committee Comments: Prior Court Rule 2.5 has no counterpart in FRAP and is therefore classified as Miscellaneous. All references in the prior rule to "divisions" of this court have been changed to "panels." Otherwise, no substantive change from prior Court Rule 2.5 is intended. The rule was amended in 2008 to clarify that judges may attend by audio or video conference.

L.A.R. MISC.

102.0 SESSIONS 102.1 Sessions - When and Where Held Table of Contents 49 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 (a) Stated sessions of the court or of its panels will be held at Philadelphia or at another place within the circuit commencing on such dates each month as the court designates, and in the Virgin Islands commencing at such dates as the court designates. Pursuant to request of the parties or order of the court, a Virgin Islands case may be heard at another place in the circuit. The stated sessions of the court in the Virgin Islands will be held in Charlotte Amalie in even- numbered years and in Christiansted in odd-numbered years unless the court directs otherwise. (b) Special sessions may be held at any time or place within the circuit when so ordered by the court.

Source: 1988 Court Rules 3.2 and 3.3 Cross-references: None Committee Comments: Prior Court Rules 3.2 and 3.3 have no counterpart in FRAP and are therefore classified as Miscellaneous. The rule has been revised to give the court the option to schedule its Virgin Islands sessions in months other than April and December. A reference to the "divisions" of this court has been changed to "panels." Otherwise, no substantive change from prior Court Rules 3.2 and 3.3 is intended. The rule has been revised so that the court may sit at other places within the circuit and may, in appropriate circumstances, reverse the place or alter the timing of the Virgin Islands sitting.

L.A.R. MISC.

103.0 MARSHAL, CRIER, AND OTHER OFFICERS 103.1 Who Shall Attend Court A crier and, if requested, the marshal of the district in which the sessions of the court are held will be in attendance during the sessions of the court. Source: 1988 Court Rule 6.1 Cross-references: None Committee Comments: Prior Court Rule 6.1 has no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 6.1 is intended.

L.A.R. MISC.

104.0 COURT LIBRARIES 104.1 Regulations Governing Use of Libraries Table of Contents 50 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 The law libraries will be open during such hours as are reasonable to satisfy the needs of the court, and will be governed by such regulations as the librarian, with the approval of the court's library committee, may from time to time make effective. Source: 1988 Court Rule 7.3 Cross-references: None Committee Comments: Prior Court Rule 7.3 has no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 7.3 is intended.

L.A.R. MISC.

105.0 JUDICIAL CONFERENCE OF THE THIRD CIRCUIT 105.1 Attendance at Invitations to the Conference In addition to judicial participants, attendance at the Judicial Conference of the Third Circuit may be open at the discretion of the chief judge to any member of the bar of any court within the circuit interested in the work of the courts and the administration of justice in the circuit. Source: 1988 Court Rule 18.2 Cross-references: 28 U.S.C. § 333 Committee Comments: Prior Court Rule 18.2 has no counterpart in FRAP and is therefore classified as Miscellaneous. The rule has been revised to reflect the court’s open invitation policy.

L.A.R. MISC.

106.0 FILING OF DOCUMENTS UNDER SEAL 106.1 Necessity; Grand Jury Matters; Previously Impounded Records; Unsealing (a) Generally. With the exception of matters relating to grand jury investigations, filing of documents under seal without prior court approval is discouraged. If a party believes a portion of a brief or other document merits treatment under seal, the party must file a motion setting forth with particularity the reasons why sealing is deemed necessary. Any other party may file objections, if any, within 7 days.

A motion to seal must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, the motion may be filed provisionally under seal. Rather than automatically requesting the sealing of an entire brief, motion, or other filing, litigants should consider whether argument relating to sealed materials may be contained in a separate sealed supplemental brief, motion or filings. Sealed documents must not be included in a regular appendix, but may be submitted in a separate, sealed volume of the appendix.

In addressing material under seal (except for the Table of Contents 51 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 presentencing report) in an unsealed brief or motion or oral argument counsel are expected not to disclose the nature of the sealed material and to apprise the court that the material is sealed. (b) Grand Jury Matters. In matters relating to grand jury investigations, when there is inadequate time for a party to file a motion requesting permission to file documents under seal, the party may file briefs and other documents using initials or a John or Jane Doe designation to avoid disclosure of the identity of the applicant or the subject matter of the grand jury investigation. Promptly thereafter, the party must file a motion requesting permission to use such a designation.

All responsive briefs and other documents must follow the same format until further order of the court. (c) Records Impounded in the District Court. (1) Criminal Cases and Cases Collaterally Attacking Convictions. Grand jury materials protected by Fed. R. Crim. P. 6(c), presentence reports, statements of reasons for the sentence and any other similar material in a criminal case or a case collaterally attacking a conviction (cases under 28 U.S.C. §§ 2241, 2254, 2255), which were filed with the district court under sealpursuant to statute, rule or an order of impoundment, and which constitute part of the record transmitted to this court, remain subject to the district court's impoundment order and will be placed under seal by the clerk of this court until further order of this court.

In cases in which impounded documents other than grand jury materials, presentence reports, statements of reasons for the sentence, or other documents required to be sealed by statute or rule, are included in the record transmitted to this court under L.A.R. 11.2, the party seeking to have the document sealed must file a motion within 21 days of receiving notice of the docketing of the appeal in this court, explaining the basis for sealing and specifying the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, the motion may be filed provisionally under seal. (2) Civil Cases. When the district court impounds part or all of the documents in a civil case, they will remain under seal in this court for 30 days after the filing of the notice of appeal to give counsel an opportunity to file a motion to continue the impoundment, setting forth the reasons therefor.

A motion to continue impoundment must explain the basis for sealing and specify the desired duration of the sealing order. If the motion does not specify a date, the documents will be unsealed, without notice to the parties, five years after conclusion of the case. If discussion of confidential material is necessary to support the motion to seal, the motion may be filed provisionally under seal. If a motion to continue impoundment is filed, the documents will remain sealed until further order of this court.

Source: 1988 Court Rule 21.3 Cross-references: 3d Cir. L.A.R. 30.3 Committee Comments: Prior Court Rule 21.3 has no counterpart in FRAP and is therefore classified as Miscellaneous. The rule has been revised to place an affirmative obligation to file a motion on the party in a civil matter who wishes to continue the sealing of documents on appeal. The archiving center will not accept sealed documents, which presents Table of Contents 52 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 storage problems for the court.

The rule has been amended to require the parties to specify how long documents must be kept under seal after the case is closed. The rule was amended in 2008 to provide that unless otherwise specified, documents in civil cases would remain sealed only for five years.

L.A.R. MISC.

107.0 SANCTIONS 107.1 Dismissal of Appeal for Failure to Pay Certain Fees (a) The clerk is authorized to dismiss the appeal if the appellant does not pay the docketing fee within 14 days after the case is opened in the court of appeals, as prescribed by 3d Cir. L.A.R. 3.3. (b) The appellant's failure to comply with 3d Cir. L.A.R. 11.1 regarding transcription fees is grounds for dismissal of the appeal.

Source: 1988 Court Rules 15.1, 28.1 Cross-references: FRAP 3(a), 11; 3d Cir. L.A.R. 3.3 Committee Comments: For the convenience of counsel, all rules relating to sanctions are included in 3d Cir. L.A.R. Misc. 107.0.

Where these rules have some counterpart in FRAP, they are included in both the corresponding 3d Cir. L.A.R. and Misc. 107.0. Where they have no counterpart in FRAP, they are included in 3d Cir.

L.A.R. Misc. 107.0 only. Only the parts of prior Court Rules 15.1 and 28.1 setting forth sanctions have been included here. No substantive change from prior Court Rules 15.1 and 28.1 is intended.

The rule was amended in 2008 to clarify when the time for payment of fees begins to run. 107.2 Dismissal for Failure to Prosecute (a) When an appellant fails to comply with the Federal Rules of Appellate Procedure or the Local Appellate Rules of this court, the clerk will issue written notice to counsel or to the appellant who appears pro se that upon the expiration of 14 days from the date of the notice, the appeal may be dismissed for want of prosecution unless appellant remedies the deficiency within that time. If the deficiency is not remedied within this period, the clerk is authorized to dismiss the appeal for want of prosecution and issue a certified copy thereof to the clerk of the district court as the mandate. The appellant is not entitled to remedy the deficiency after the appeal is dismissed except by order of the court.

A motion to set aside such an order must be justified by the showing of good cause and must be filed within 10 days of the date of dismissal. If the appeal is one taken from the District Court of the Virgin Islands, an additional 10 days will be added to the time limits specified in this paragraph. (b) Notwithstanding subsection (a), if an appellant fails to comply with the Federal Rules Table of Contents 53 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 of Appellate Procedure and the Local Appellate Rules with respect to the timely filing of a brief and appendix, at any time after the seventh day following the due date, the clerk is authorized to dismiss the appeal for want of timely prosecution. The procedure to be followed in requesting an order to set aside dismissal of the appeal is the same as that set forth in subsection (a).

Source: 1988 Court Rule 28.2 Cross-references: FRAP 3(a) Committee Comments: Prior Court Rule 28.2 had no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 28.2 is intended. 107.3 Non-Conforming Motion, Brief or Appendix If a motion, brief, or appendix submitted for filing does not comply with FRAP 27 - 32 or 3d Cir. L.A.R. 27.0 - 32.0, the clerk will file the document, but notify the party of the need to promptly correct the deficiency.

The clerk will also cite this rule and indicate to the defaulting party how he or she failed to comply. In the event a party subsequently corrects the deficiencies in either a brief or appendix pursuant to this rule and that party prevails on appeal, costs which were incurred in order to bring the brief or appendix into compliance may not be allowed. If the party fails or declines to correct the deficiency, the clerk must refer the defaulting document, any motion or answer by the party, and pertinent correspondence to a judge of this court for review. If the court finds that the party continues not to be in compliance with the rules despite the notice by the clerk, the court may, in its discretion, impose sanctions as it may deem appropriate, including but not limited to the dismissal of the appeal, striking of the document, imposition of costs or disciplinary sanctions upon counsel.

Source: 1988 Court Rule 21.4 Cross-references: FRAP 3(a), 30(b)(2), 38; 3d Cir. L.A.R. 27.0 - 32.0 Committee Comments: Prior Court Rule 21.4 had no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 21.4 is intended. 107.4 Sanctions Pursuant to FRAP 30(b)(2) (a) The court, sua sponte by Rule to Show Cause or on the motion of any party, may impose sanctions in the form of denial of all or some of the costs of the appeal upon finding that any party has unreasonably and vexatiously caused the inclusion of materials in an appendix that are unnecessary for the determination of the issues presented on appeal.

(b) A party filing such a motion must do so not later than 10 days after a bill of costs has been served. The movant must submit with the motion an itemized statement specifically setting forth, by name and appendix page number, the item or items that the movant asserts were unnecessarily included in the appendix. Table of Contents 54 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 (c) Any party against whom sanctions are requested may file an answer to the motion or Rule to Show Cause, which must be filed within 10 days after service of the motion or Rule to Show Cause. Source: 1988 Court Rule 20.4 Cross-references: FRAP 30(b)(2); 3d Cir.

L.A.R. 30.5 Committee Comments: This Miscellaneous Rule is identical to 3d Cir. L.A.R. 30.5. No substantive change from prior Court Rule 20.4 is intended.

L.A.R. MISC.

108.0 APPLICATIONS FOR ATTORNEY'S FEES AND EXPENSES 108.1 Application for Fees (a) Except as otherwise provided by statute, all applications for an award of attorney's fees and other expenses relating to a case filed in this court, regardless of the source of authority for assessment, must be filed within 30 days after the entry of this court's judgment, unless a timely petition for panel rehearing or rehearing en banc has been filed, in which case a request for attorney's fees must be filed within 14 days after the court's disposition of such petition. Such application must be filed with the clerk in the time set forth above whether or not the parties seek further action in the case or further review from any court. (b) The court will strictly adhere to the time set forth above and grant exceptions only in extraordinary circumstances. (c) The application must include a short statement of the authority pursuant to which the party seeks the award.

The application must also show the nature and extent of services rendered and the amount sought, including an itemized statement in affidavit form from the attorney stating the actual time expended and the rate at which fees are computed, together with a statement of expenses for which reimbursement is sought. Source: 1988 Court Rule 27.1 Cross-references: None Committee Comments: Prior Court Rule 27.1 has no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 27.1 is intended. L.A.R. Misc.

108.3 addresses claims for attorney's fees and expenses under the Criminal Justice Act, 18 U.S.C. § 3006A. Petition for rehearing en banc was substituted for “suggestion for rehearing en banc” in 2008 to conform to changes in FRAP. 108.2 Objections to Applications for Fees Written objections to an allowance of attorney's fees, setting forth specifically the basis Table of Contents 55 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 for objection, must be filed within 10 days after service of the application. Thereafter, the court may, when appropriate, either refer the application to the district court or agency where the case originated or refer the application to a master.

Source: 1988 Court Rule 27.2 Cross-references: FRAP 48; 3d Cir. L.A.R. 48.0 Committee Comments: Prior Court Rule 27.2 has no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 27.2 is intended. 108.3 Fee Applications Under 18 U.S.C. § 3006A All claims for attorney's fees and reimbursement for expenses reasonably incurred by counsel in representing a defendant under the Criminal Justice Act, 18 U.S.C. § 3006A, be must filed with the clerk no later than 45 days after the conclusion of the attorney's representation.

Such claims must be itemized and prepared on prescribed forms. Source: 1988 Court Rule 30.1 Cross-references: 18 U.S.C. § 3006A; Third Circuit Criminal Justice Act Plan, Chapter 4(2) (1991) Committee Comments: Prior Court Rule 30.1 has no counterpart in FRAP and is therefore classified as Miscellaneous. No substantive change from prior Court Rule 30.1 is intended.

L.A.R. MISC.

109.0 COUNSEL IN DIRECT CRIMINAL APPEALS 109.1 Trial Counsel to Continue Representation on Appeal Trial counsel in criminal cases, whether retained or appointed, are expected to continue on appeal absent extraordinary circumstances. After the entry of an order of judgment, counsel will not be permitted to withdraw from a direct criminal appeal without specific leave of this court. Trial counsel not members of the bar of this court must promptly move for admission pursuant to 3d Cir. L.A.R. 46.1.

Source: Cross-references: None None Committee Comments: 3d Cir. L.A.R. Misc. 109.1 is designed to remind trial counsel in criminal cases that they are expected to continue the representation of their clients through appeal. "Trial counsel" includes counsel Table of Contents 56 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 who have represented a client at pretrial, plea or sentencing proceedings.

109.2 Motions by Trial Counsel to Withdraw Representation (a) Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), which must be served upon the appellant and the United States. The United States must file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel.

If the panel agrees that the appeal is without merit, it will grant counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the clerk to discharge current counsel and appoint new counsel. (b) In cases in which a motion to withdraw filed by counsel appointed under the Criminal Justice Act has been granted after the filing of a brief pursuant to Anders v. California, 386 U.S. 738 (1967), the court in its decision determining the case may state that the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the Supreme Court.

In such a case counsel is under no obligation to file a petition. In all other cases in which counsel appointed under the Criminal Justice Act is of the opinion, in his or her professional judgment, that no issues are present which warrant the filing of a petition for writ of certiorari in the Supreme Court, counsel must promptly file with the court of appeals a motion stating that opinion with particularity and requesting leave to withdraw. SeeAustin v. United States, 513 U.S. 5 (1994). Any such motion must be served on the appellant and the United States.

(c) If the court is of the opinion in a case in which counsel has been appointed under the Criminal Justice Act that there are no issues present which warrant the filing of a petition for writ of certiorari, the court may include a statement to that effect in its decision and counsel may thereafter file the appropriate motion to withdraw. Any such motion must be served on the appellant and the United States. The absence of a statement by the court with respect to the merit of issues which might be presented to the Supreme Court must not be construed as an indication of the opinion of the court of appeals of merit or lack of merit of any issue. Source: None Cross-references: Third Circuit Criminal Justice Act Plan, Chapter 3 Committee Comments: New provision in 1995.

3d Cir. L.A.R. Misc. 109.2 sets out for the first time the procedure by which trial counsel may withdraw from a non-meritorious criminal appeal pursuant to Anders v. California, 386 U.S. 738 (1967). Addition of sections (b) and (c) was made in response to Austin v. United States, 513 U.S. 5 (1994).

Subsection (a) was revised in 2008 to conform with United States v. Marvin, 211 F.3d 778, 782 n.4 (3d Cir. 2000). Table of Contents 57 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 L.A.R. MISC. 110.0 CERTIFICATION OF QUESTIONS OF STATE LAW 110.1 Certification of Questions of State Law When the procedures of the highest court of a state provide for certification to that court by a federal court of questions arising under the laws of that state which will control the outcome of a case pending in the federal court, this court, sua sponte or on motion of a party, may certify such a question to the state court in accordance with the procedures of that court, and will stay the case in this court to await the state court's decision whether to accept the question certified.

The certification will be made after the briefs are filed in this court. A motion for certification must be included in the moving party's brief.

L.A.R. MISC.

111.0 DEATH PENALTY CASES 111.1 Scope This rule, in conjunction with all other applicable rules, governs all cases in which this court is required to rule on the imposition of the death penalty. The rule is applicable to direct criminal appeals, appeals from the grant or denial of a motion to vacate sentence or a petition for writ of habeas corpus, appeals from the grant or denial of requests for stay or injunctive relief, applications under 28 U.S.C. § 2244 and/or § 2255, and original petitions for writ of habeas corpus. Source: 1988 Court Rule 29 (Introductory Paragraph) Cross-references: 18 U.S.C. § 3731, 28 U.S.C. §§ 2254, 2255; Federal Rules of Appellate Procedure; 3d Cir. L.A.R.; 3d Cir.

Internal Operating Procedures Committee Comments: Prior Court Rule 29 (Introductory Paragraph) has no counterpart in FRAP and is therefore classified as Miscellaneous. 3d Cir. L.A.R. Misc. 111.1 broadens the scope of the prior rule to provide for review of death sentences imposed on federal as well as state prisoners.

Where applicable, 3d Cir. L.A.R. Misc. 111.2 - 111.7 are similarly amended to reflect the broadened scope of 3d Cir. Misc.

111.0. 111.2 Preliminary Requirements (a) In aid of this court's potential jurisdiction, each party in any proceeding filed in any district court in this circuit challenging the imposition of a sentence of death pursuant to a federal or state court judgment must file a "Certificate of Death Penalty Case" with any initial pleading filed in the district court. A certificate must also be filed by the U.S. Attorney upon return of a verdict of death in a federal criminal case. The certificate will include the following information: names, addresses, and telephone numbers of parties and counsel; if set, the proposed date of Table of Contents 58 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 execution of sentence; and the emergency nature of the proceedings.

Upon docketing, the clerk of the district court will transmit a copy of the certificate, together with a copy of the petition, to the clerk of this court. (b) Upon entry of an appealable order in the district court, the clerk of the district court and appellant's counsel will prepare the record for appeal. The record will be transmitted to this court within 5 days after the filing of a notice of appeal from the entry of an appealable order under 18 U.S.C. § 3731, 28 U.S.C. § 1291, or 28 U.S.C. § 1292(a)(1), unless the appealable order is entered within 14 days of the date of a scheduled execution, in which case the record must be transmitted immediately by expedited delivery. (c) Upon the entry of a warrant or order setting an execution date in any case within the geographical boundaries of this circuit, and in aid of this court's potential jurisdiction, the clerk is directed to monitor the status of the execution and any pending litigation and to establish communications with all parties and relevant state and/or federal courts.

Without further order of this court, the clerk may direct parties to lodge with this court up to five copies of (1) relevant portions of previous state and/or federal court records, or the entire record, and (2) pleadings, briefs, and transcripts of any ongoing proceedings. Source: 1988 Court Rule 29.1 Cross-references: 18 U.S.C. § 3731, 28 U.S.C. §§ 1291, 1292 Committee Comments: Prior Court Rule 29.1 has no counterpart in FRAP and is therefore classified as Miscellaneous. The prior rule's general reference to a "certificate providing specific information" has been changed to the more specific "Certificate of Death Penalty Case" to reflect current practice. Subsection (c) directs the clerk to establish lines of communication with the sentencing court and other concerned parties and to authorize the filing of documents and court records in advance of the court's jurisdiction.

This section has been added because some parties in recent cases have challenged the clerk's authority to request information in the absence of a docketed appeal. Because early warning is critical, the court expressly delegates this authority to the clerk pursuant to this local rule. 111.3 Review of Direct Criminal Appeals, Petitions for Writs of Habeas Corpus and Motions to Vacate Sentence (a) In all such cases, the district court must articulate the reasons for its disposition of the case in a written opinion, which must be expeditiously prepared and filed, or by an oral opinion from the bench, which must be promptly transcribed. (b) The district court must state whether a certificate of appealability is granted or denied at the time a final decision is entered on the merits of a claim seeking relief under 28 U.S.C. § 2254 or 2255.

If the district court grants the certificate of appealability, it must state the issues that merit the granting of the certificate and it must also grant a stay pending disposition of Table of Contents 59 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 the appeal except as provided in 28 U.S.C. § 2262. (c) The denial of a certificate of appealability by the district court will not delay consideration by this court of a motion for stay or review of the merits. If the court grants a certificate of appealability, it may thereafter affirm, reverse or remand without further briefing under I.O.P. 10.6 or may direct full briefing and oral argument. Source: 1988 Court Rule 29.2 Cross-references: 28 U.S.C. § 2254 Committee Comments: Subsection (c) is intended to clarify this court's practice with respect to certificates of appealability in death penalty cases.

In accordance with Barefoot v. Estelle, 463 U.S. 880 (1982), the court of appeals may consider, in addition to whether there has been a substantial showing of the denial of a constitutional right, the severity of the sentence in determining whether a certificate of appealability should be issued. Technical changes were made in 1997 to conform to the Antiterrorism and Effective Death Penalty Act. 111.4 Motion for Stay of Execution of a Federal or State Court Judgment and Motions to Vacate Orders Granting a Stay (a) Except as provided in 28 U.S.C. § 2262, motions for stay of execution and motions to vacate stay orders may be filed in docketed requests for certificate of appealability, applications to file a second or successive petition, or appeals from the denial of injunctive relief. No such motion may be entertained unless a case has been docketed in this court.

If a stay application is submitted to this court before a district court decision is entered, the clerk must transmit the motion to the panel designated to hear and dispose of the case. (b) Documents Required. The movant must file the original and three (3) copies of a motion and serve all parties. Legible copies of the documents listed in 1-10 below must be attached to the motion.

If time does not permit, the motion may be filed without attachments, but the movant must file the necessary copies as soon as possible. (1) The complaint or petition to the district court; (2) Each brief or memorandum of authorities filed by both parties in the district court; (3) The opinion giving the reasons advanced by the district court for granting or denying relief; (4) The district court judgment granting or denying relief; (5) The application to the district court for a stay; 60 Table of Contents 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 (6) The district court order granting or denying a stay, and the statement of reasons for its action; (7) The certificate of appealability or, if there is none, the order denying a certificate of appealability; (8) A copy of each state or federal court opinion or judgment in cases in which appellant was a party involving any issue presented to this court or, if the ruling was not made in a written opinion or judgment, a copy of the relevant portions of the transcripts; (9) A copy of the docket entries of the district court; and (10) Notice of appeal. (c) Emergency Motions. Emergency motions or applications, whether addressed to the court or to an individual judge, must ordinarily be filed with the clerk rather than an individual circuit judge.

If time does not permit the filing of a motion or application in person, by mail, or electronically, counsel may communicate with the clerk or a single judge of this court and thereafter must file the motion with the clerk in writing as promptly as possible. The motion, application, or oral communication must contain a brief account of the prior actions of this court or judge to which the motion or application, or a substantially similar or related petition for relief, has been submitted. Source: 1988 Court Rule 29.3 Cross-references: 28 U.S.C. § 2251; FRAP 8 Committee Comments: Prior Court Rule 29.3 has no counterpart in FRAP and is therefore classified as Miscellaneous. Except where necessary to reflect the expansion of this rule to reach federal prisoners, no substantive change from prior Court Rule 29.3 is intended.

111.5 Statement of the Case; Exhaustion; Issues Presented In addition to requirements set forth in 3d Cir. L.A.R. 28 with respect to the contents of motions and briefs, any application, motion, or brief that may result in either a disposition on the merits or the grant or denial of a stay of execution must include: (a) A statement of the case delineating precisely the procedural history of the case; (b) With respect to state habeas corpus petitions brought pursuant to 28 U.S.C. § 2254, a statement of exhaustion with respect to each issue presented to the district court indicating whether it has been exhausted and if not, what circumstances exist that may justify an exception to the exhaustion requirement. (c) The parties must fully address every issue presented to this court. Supplemental briefing will be permitted only by order of this court.

Table of Contents 61 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 Source: 1988 Court Rule 29.4 Cross-references: None Committee Comments: Prior Court Rule 29.4 has no counterpart in FRAP and is therefore classified as Miscellaneous. Except where necessary to reflect the expansion of this rule to reach federal prisoners, no substantive change from prior Court Rule 29.4 is intended. 111.6 Consideration of Merits The panel to which an appeal has been assigned must consider and expressly rule on the merits before vacating or denying a stay of execution. Source: 1988 Court Rule 29.5 Cross-references: None Committee Comments: None 111.7 Determination of Causes by the Court En Banc (a) Filing.

The filing of petitions seeking hearing or rehearing by the court en banc is governed by FRAP 35 and 3d Cir. L.A.R. 35. However, because of the difficulty of delivering petitions seeking hearing or rehearing by the court en banc to the judges of the court, the parties are hereby notified that due to these logistical considerations any such petition filed within 48 hours of a scheduled execution may not be delivered to the judges of the court in sufficient time for adjudication prior to the time of the scheduled execution. Petitions for rehearing by the court en banc filed within 48 hours of a scheduled execution will be processed and distributed by the normal means of delivery used by the court unless the panel handling the case has entered an order for expedited voting in accordance to subsection (b) of this rule.

(b) Consideration. Consideration of a petition seeking hearing or rehearing by the court en banc will be in accordance with the procedures specified in the court's Internal Operating Procedures except that if an execution is scheduled, the original panel which has determined the matter may, upon a majority vote, direct that the time normally allowed for voting to request answers or to grant the petition may be reduced to a time specified by the panel. Upon the entry of an order by the panel reducing the time for voting, the clerk must immediately transmit the petition and the order to the court by the most expedient means available. (c) Stays.

Generally the court will not enter a stay of execution solely to allow additional time for counsel to prepare, or for the court to consider, a petition for rehearing or for rehearing by the court en banc except as follows: (1) A stay may be granted in order to allow time for counsel to prepare, or for the court to consider, a petition for rehearing upon majority vote of the original panel. Such a vote will be based upon a determination that there is a reasonable possibility that a majority of the Table of Contents 62 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 active members of the court would vote to grant rehearing by the court en banc and whether there is a substantial possibility of reversal of its decision, in addition to a likelihood that irreparable harm will result if the decision is not stayed. (2) In the event that four judges vote to direct the filing of answers to a petition seeking rehearing by the court en banc, the presiding judge of the merits panel will enter a stay. (3) A stay entered in accordance with 3d Cir.

L.A.R. 8.2 in a direct appeal of a conviction or sentence in a criminal case in which the district court has imposed a sentence of death will remain in effect until the court's mandate issues. The mandate will ordinarily not issue until such time that the time for filing a petition for rehearing has expired, or if such a petition has been filed, until the petition has been determined. (d) No petition for rehearing may be filed from the denial of a petition seeking authorization under 28 U.S.C. § 2244 or §2255 to file a second or successive habeas corpus petition under § 2254 or motion to vacate sentence under § 2255. Source: 6th Cir.

Rule 28(k), 11th Cir. IOP 35-11.8 [L.A.R. Misc. 111.7(a)]; 4th Cir. IOP 22.3(b) [L.A.R. Misc.

111.7(c)]; 5th Cir. IOP 8.11 [L.A.R. Misc. 111.7(c)(1)] Cross-References: FRAP 35 and 40; 3d Cir. L.A.R. 35; Third Circuit Internal Operating Procedures, Chapter 9 (1994) Committee Comments: New Provision in 1995.

Although the extraordinary nature of death penalty cases is recognized, this section must be read in conjunction with 3d Cir. L.A.R. 35.4 in which it is emphasized that the court does not favor requests for hearing or rehearing en banc. Because 28 U.S.C. § 2244(b)(3)(D) prohibits the filing of a petition for rehearing from the denial of an application seeking permission to file a second or successive § 2254 or § 2255 petition, there is no conflict with Rule 25(a), FRAP, which states that the clerk may not reject a document “solely because it is not presented in proper form.” The rejection of such a petition for rehearing is not for form, but is required by statute. 111.8 Post-Judgment Motions (a) Mandate: The panel may order that the mandate of the court issue forthwith or after such time as it may fix.

(b) Stays of Execution: In ruling on a motion for stay to permit the filing and consideration of a petition for writ of certiorari, the panel must determine whether there is a reasonable probability that the United States Supreme Court would consider the underlying issues sufficiently meritorious to grant the petition. Source: 1988 Court Rule 29.6 Table of Contents 63 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 Cross-references: None Committee Comments: No substantive change from prior Court Rule 29.6 is intended. 111.9 Second or Successive Petitions The procedures of L.A.R. 22.5 apply to the filing of a petition seeking authorization under 28 U.S.C. § 2244 or 2255 to file a second or successive habeas corpus petition under § 2254 or motion to vacate sentence under § 2255 in a death penalty case. Source: