AMENDMENTS TO THE CALIFORNIA RULES OF COURT Adopted by the Judicial Council on November 30, 2018, effective on April 25, 2019 Division 6. Postconviction, Postrelease, and Writs ....................................................... 2 1

Chapter 3. Habeas Corpus.............................................................................................. 2 2

Article 1. General Provisions ......................................................................................... 2 3 Rule 4.545.

Definitions .............................................................................................. 2 4

Article 2. Noncapital Habeas Corpus Proceedings in the Superior Court ..................... 2 5 Rule 4.550. Habeas corpus application and

definitions ............................................. 2 6

Article 3. Death Penalty–Related Habeas Corpus Proceedings in the Superior Court .. 3 7 Rule 4.560. Application of

article .............................................................................. 3 8 Rule 4.561. Superior court appointment of counsel in death penalty–related habeas 9 corpus proceedings...................................................................................................... 3 10 Rule 4.562. Recruitment and determination of qualifications of attorneys for 11 appointment in death penalty–related habeas corpus proceedings ............................. 6 12

Chapter 8. Miscellaneous Writs [Reserved] ................................................................ 10 13 Former rule 8.495. Renumbered effective April 25, 2019 . ...................................... 10 14 Former rule 8.496. Renumbered effective April 25, 2019 . ...................................... 10 15 Former rule 8.498. Renumbered effective April 25, 2019 . ...................................... 10 16 Former rule 8.499. Renumbered effective April 25, 2019. ...................................... 10 17 Division 2.

Rules Relating to Death Penalty Appeals and Habeas Corpus Proceedings 18 ....................................................................................................................................... 10 19 Rule 8.600. In general .............................................................................................. 10 20 Former rule 8.600. Renumbered effective April 25, 2019 . ...................................... 11 21

Chapter 1. General Provisions ..................................................................................... 11 22 Rule 8.601.

Definitions ............................................................................................ 11 23

Chapter 10.2. Automatic Appeals From Judgments of Death ..................................... 13 24

Article 1. General Provisions ....................................................................................... 13 25 Rule 8.603.8.600. In general .................................................................................... 13 26 Rule 8.605. Qualifications of counsel in death penalty appeals and habeas corpus 27 proceedings ............................................................................................................... 13 28

Chapter 3. Death Penalty–Related Habeas Corpus Proceedings ................................. 20 29 Rule 8.652. Qualifications of counsel in death penalty–related habeas corpus 30 proceedings ............................................................................................................... 20 31 32 33

Division 6. Postconviction, Postrelease, and Writs 1 2

Chapter 3. Habeas Corpus 3 4

Article 1. General Provisions 5 6 Rule 4.545.

Definitions 7 8 In this chapter, the following

definitions apply: 9 10

(1) A “petition for writ of habeas corpus” is the petitioner’s initial filing that 11 commences a proceeding. 12 13

(2) An “order to show cause” is an order directing the respondent to file a return. The 14 order to show cause is issued if the petitioner has made a prima facie showing that 15 he or she is entitled to relief; it does not grant the relief requested. An order to show 16 cause may also be referred to as “granting the writ.” 17 18

(3) The “return” is the respondent’s statement of reasons that the court should not grant 19 the relief requested by the petitioner. 20 21

(4) The “denial” is the petitioner’s pleading in response to the return. The denial may 22 be also referred to as the “traverse.” 23 24

(5) An “evidentiary hearing” is a hearing held by the trial court to resolve contested 25 factual issues. 26 27

(6) An “order on writ of habeas corpus” is the court’s order granting or denying the 28 relief sought by the petitioner. 29 30

(7) The

definitions in rule 8.601 also apply to this chapter. 31 32 Rule 4.545 adopted effective April 25, 2019. 33 34

Article 2. Noncapital Habeas Corpus Proceedings in the Superior Court 35 36 Rule 4.550. Habeas corpus application and

definitions 37 38 (

a) Application 39 40 This

chapter

article applies to habeas corpus proceedings in the superior court under 41 Penal Code

section 1473 et seq. or any other provision of law authorizing relief from 42

unlawful confinement or unlawful conditions of confinement, except for death penalty–1 related habeas corpus proceedings, which are governed by rule 4.560 et seq. 2 3 (

b) Definitions 4 5 In this chapter, the following

definitions apply: 6 7

(1) A “petition for writ of habeas corpus” is the petitioner’s initial filing that 8 commences a proceeding. 9 10

(2) An “order to show cause” is an order directing the respondent to file a return. 11 The order to show cause is issued if the petitioner has made a prima facie 12 showing that he or she is entitled to relief; it does not grant the relief 13 requested. An order to show cause may also be referred to as “granting the 14 writ.” 15 16

(3) The “return” is the respondent’s statement of reasons that the court should 17 not grant the relief requested by the petitioner. 18 19

(4) The “denial” is the petitioner’s pleading in response to the return. The denial 20 may be also referred to as the “traverse.” 21 22

(5) An “evidentiary hearing” is a hearing held by the trial court to resolve 23 contested factual issues. 24 25

(6) An “order on writ of habeas corpus” is the court’s order granting or denying 26 the relief sought by the petitioner. 27 28 Rule 4.550 amended effective April 25, 2019; adopted effective January 1, 2002; previously 29 amended effective January 1, 2007. 30 31

Article 3. Death Penalty–Related Habeas Corpus Proceedings in the Superior Court 32 33 Rule 4.560. Application of

article 34 35 This

article governs procedures for death penalty–related habeas corpus proceedings in 36 the superior courts. 37 38 Rule 4.560 adopted effective April 25, 2019. 39 40 Rule 4.561. Superior court appointment of counsel in death penalty–related habeas 41 corpus proceedings 42 43

(

a) Purpose 1 2 This rule, in conjunction with rule 4.562, establishes a mechanism for superior 3 courts to appoint qualified counsel to represent indigent persons in death penalty–4 related habeas corpus proceedings. This rule governs the appointment of counsel by 5 superior courts only, including when the Supreme Court or a Court of Appeal has 6 transferred a habeas corpus petition without having appointed counsel for the 7 petitioner. It does not govern the appointment of counsel by the Supreme Court or a 8 Court of Appeal. 9 10 (

b) Prioritization of oldest judgments 11 12 In the interest of equity, both to the families of victims and to persons sentenced to 13 death, California courts, whenever possible, should appoint death penalty–related 14 habeas corpus counsel first for those persons subject to the oldest judgments of 15 death. 16 17 (

c) List of persons subject to a judgment of death 18 19 The Habeas Corpus Resource Center must maintain a list of persons subject to a 20 judgment of death, organized by the date the judgment was entered by the 21 sentencing court. The list must indicate whether death penalty–related habeas 22 corpus counsel has been appointed for each person and, if so, the date of the 23 appointment. The list must also indicate for each person whether a petition is 24 pending in the Supreme Court. 25 26 (

d) Notice of oldest judgments without counsel 27 28

(1) Within 30 days of the effective date of this rule, the Habeas Corpus Resource 29 Center must identify the persons on the list required by (

c) with the 25 oldest 30 judgments of death for whom death penalty–related habeas corpus counsel 31 have not been appointed. 32 33

(2) The Habeas Corpus Resource Center must notify the presiding judges of the 34 superior courts in which these 25 judgments of death were entered that these 35 are the oldest cases in which habeas corpus counsel have not been appointed. 36 The Habeas Corpus Resource Center will send a copy of the notice to the 37 administrative presiding justice of the appellate district in which the superior 38 court is located. 39 40

(3) The presiding judge must identify the appropriate judge within the court to 41 make an appointment and notify the judge that the case is among the oldest 42 cases in which habeas corpus appointments are to be made. 43

(4) If qualified counsel is available for appointment to a case for which a petition 2 is pending in the Supreme Court, the judge must provide written notice to the 3 Supreme Court that counsel is available for appointment. 4 5

(5) On entry of an order appointing death penalty–related habeas corpus counsel, 6 the appointing court must promptly send a copy of the appointment order to 7 the Habeas Corpus Resource Center, which must update the list to reflect that 8 counsel was appointed, and to the clerk/executive officer of the Supreme 9 Court, the Attorney General, and the district attorney. The court must also 10 send notice to the Habeas Corpus Resource Center, clerk/executive officer of 11 the Supreme Court, Attorney General, and district attorney if, for any reason, 12 the court determines that it does not need to make an appointment. 13 14

(6) When a copy of an appointment order, or information indicating that an 15 appointment is for any reason not required, has been received by the Habeas 16 Corpus Resource Center for 20 judgments, the center will identify the next 20 17 oldest judgments of death in cases in which death penalty–related habeas 18 corpus counsel have not been appointed and send out a notice identifying 19 these 20 judgments, and the procedures required by paragraphs (3) through 20 (6) of this subdivision must be repeated. 21 22

(7) The presiding judge of a superior court may designate another judge within 23 the court to carry out his or her duties in this subdivision. 24 25 (

e) Appointment of counsel 26 27

(1) After the court receives a notice under (d)(2) and has made the findings 28 required by Government Code

section 68662, the appropriate judge must 29 appoint a qualified attorney or attorneys to represent the person in death 30 penalty–related habeas corpus proceedings. 31 32

(2) The superior court must appoint an attorney or attorneys from the statewide 33 panel of counsel compiled under rule 4.562(d)(4); an entity that employs 34 qualified attorneys, including the Habeas Corpus Resource Center, the local 35 public defender’s office, or alternate public defender’s office; or if the court 36 has adopted a local rule under 4.562(g), an attorney determined to be 37 qualified under that court’s local rules. The court must at this time also 38 designate an assisting entity or counsel, unless the appointed counsel is 39 employed by the Habeas Corpus Resource Center. 40 41

(3) When the court appoints counsel to represent a person in a death penalty– 42 related habeas corpus proceeding under this subdivision, the court must 43

complete and enter an Order Appointing Counsel in Death Penalty–Related 1 Habeas Corpus Proceeding (form HC-101). 2 3 Rule 4.561 adopted effective April 25, 2019. 4 5 Rule 4.562. Recruitment and determination of qualifications of attorneys for 6 appointment in death penalty–related habeas corpus proceedings 7 8 (

a) Purpose 9 10 This rule provides for a panel of attorneys from which superior courts may appoint 11 counsel in death penalty–related habeas corpus proceedings. 12 13 (

b) Regional habeas corpus panel committees 14 15 Each Court of Appeal must establish a death penalty–related habeas corpus panel 16 committee as provided in this rule. 17 18 (

c) Composition of regional habeas corpus panel committees 19 20

(1) The administrative presiding justice of the Court of Appeal appoints the 21 members of each committee. Each committee must be composed of: 22 23 (

A) One justice of the Court of Appeal to serve as the chair of the 24 committee; 25 26 (

B) A total of three judges from among those nominated by the presiding 27 judges of the superior courts located within the appellate district; and 28 29 (

C) A total of three attorneys from among those nominated by the entities 30 in the six categories below. At least two of those appointed must have 31 experience representing a petitioner in a death penalty–related habeas 32 corpus proceeding. 33 34 (

i) An attorney nominated by the Habeas Corpus Resource Center; 35 36 (ii) An attorney nominated by the California Appellate Project–San 37 Francisco; 38 39 (iii) An attorney nominated by the appellate project with which the 40 Court of Appeal contracts; 41 42

(iv) An attorney nominated by any of the federal public defenders’ 1 offices of the federal districts in which the participating courts are 2 located; 3 4 (

v) An attorney nominated by any of the public defenders’ offices in 5 a county where the participating courts are located; and 6 7 (vi) An attorney nominated by any entity not listed in this 8 subparagraph, if the administrative presiding justice requests such 9 a nomination. 10 11

(2) Each committee may also include advisory members, as authorized by the 12 administrative presiding justice. 13 14

(3) The term of the chair and committee members is three years. Terms are 15 staggered so that an approximately equal number of each committee’s 16 members changes annually. The administrative presiding justice has the 17 discretion to remove or replace a chair or committee member for any reason. 18 19

(4) Except as otherwise provided in this rule, each committee is authorized to 20 establish the procedures under which it is governed. 21 22 (

d) Regional habeas corpus panel committee responsibilities 23 24 The committee has the following responsibilities: 25 26

(1) Support superior court efforts to recruit applicants 27 28 Each committee must assist the participating superior courts in their efforts to 29 recruit attorneys to represent indigent petitioners in death penalty–related 30 habeas corpus proceedings in the superior courts. 31 32

(2) Accept applications 33 34 Each committee must accept applications from attorneys who seek to be 35 included on the panel of attorneys qualified for appointment in death penalty– 36 related habeas corpus proceedings in the superior courts. 37 38 (

A) The application must be on a Declaration of Counsel re Minimum 39 Qualifications for Appointment in Death Penalty–Related Habeas 40 Corpus Proceedings (form HC-100). 41 42

(

B) Except as provided in (C), each committee must accept applications 1 from attorneys whose principal place of business is within the appellate 2 district and from only those attorneys. 3 4 (

C) In addition to accepting applications from attorneys whose principal 5 place of business is in its district, the First Appellate District committee 6 must also accept applications from attorneys whose principal place of 7 business is outside the state. 8 9

(3) Review qualifications 10 11 Each committee must review the applications it receives and determine 12 whether the applicant meets the minimum qualifications stated in this 13 division to represent persons in death penalty–related habeas corpus 14 proceedings in the superior courts. 15 16

(4) Provide names of qualified counsel for statewide panel 17 18 (

A) If a committee determines by a majority vote that an attorney is 19 qualified to represent persons in death penalty–related habeas corpus 20 proceedings in the superior court, it must include the name of the 21 attorney on a statewide panel of qualified attorneys. 22 23 (

B) Committees will provide to the Habeas Corpus Resource Center the 24 names of attorneys who the committees determine meet the minimum 25 qualifications. The Habeas Corpus Resource Center must consolidate 26 the names into a single statewide panel, update the names on the panel 27 at least quarterly, and make the most current panel available to superior 28 courts on its website. 29 30 (

C) Unless removed from the panel under (d)(6), an attorney included on 31 the panel may remain on the panel for up to six years without 32 submitting a renewed application. 33 34 (

D) Inclusion on the statewide panel does not entitle an attorney to 35 appointment by a superior court, nor does it compel an attorney to 36 accept an appointment. 37 38

(5) Match qualified attorneys to cases 39 40 Each committee must assist a participating superior court in matching one or 41 more qualified attorneys from the statewide panel to a person for whom 42

counsel must be appointed under Government Code

section 68662, if the 1 court requests such assistance. 2 3

(6) Remove attorneys from panel 4 5 Suspension or disbarment of an attorney will result in removal of the attorney 6 from the panel. Other disciplinary action, or a finding that counsel has 7 provided ineffective assistance of counsel, may result in a reevaluation of the 8 attorney’s inclusion on the panel by the committee that initially determined 9 the attorney to have met minimum qualifications. 10 11 (

e) Consolidated habeas corpus panel committees 12 13 The administrative presiding justices of two or more Courts of Appeal may elect, 14 following consultation with the presiding judges of the superior courts within their 15 respective appellate districts, to operate a single committee to collectively fulfill the 16 committee responsibilities for the superior courts in their appellate districts. 17 18 (

f) Recruitment of qualified attorneys 19 20 The superior courts in which a judgment of death has been entered against an 21 indigent person for whom habeas corpus counsel has not been appointed must 22 develop and implement a plan to identify and recruit qualified counsel who may 23 apply to be appointed. 24 25 (

g) Local rule 26 27 A superior court may, by adopting a local rule, authorize appointment of qualified 28 attorneys who are not members of the statewide panel. The local rule must establish 29 procedures for submission and review of a Declaration of Counsel re Minimum 30 Qualifications for Appointment in Death Penalty–Related Habeas Corpus 31 Proceedings (form HC-100) and require attorneys to meet the minimum 32 qualifications under rule 8.652(c). 33 34 Rule 4.562 adopted effective April 25, 2019. 35 36 Advisory Committee Comment 37 38 Subdivisions (

d) and (f). In addition to the responsibilities identified in subdivisions (

d) and (f), 39 courts and regional committees are encouraged to support activities to expand the pool of 40 attorneys that are qualified to represent petitioners in death penalty–related habeas corpus 41 proceedings. Examples of such activities include providing mentoring and training programs and 42 encouraging the use of supervised counsel. 43

Chapter 8. Miscellaneous Writs [Reserved] 1 2 Former rule 8.495. Renumbered effective April 25, 2019. 3 Rule 8.495 renumbered as rule 8.720. 4 5 Former rule 8.496. Renumbered effective April 25, 2019. 6 Rule 8.496 renumbered as rule 8.724. 7 8 Former rule 8.498. Renumbered effective April 25, 2019. 9 Rule 8.498 renumbered as rule 8.728. 10 11 Former rule 8.499. Renumbered effective April 25, 2019. 12 Rule 8.499 renumbered as rule 8.730. 13 14 15 Division 2. Rules Relating to Death Penalty Appeals and Habeas Corpus 16 Proceedings 17 18 Rule 8.600. In general 19 20 (

a) Automatic appeal to Supreme Court 21 22 If a judgment imposes a sentence of death, an appeal by the defendant is 23 automatically taken to the Supreme Court. 24 25 (

b) Copies of judgment 26 27 When a judgment of death is rendered, the superior court clerk must immediately 28 send certified copies of the commitment to the Supreme Court, the Attorney 29 General, the Governor, and the California Appellate Project in San Francisco. 30 31 (

c) Extensions of time 32 33 When a rule in this part authorizes a trial court to grant an extension of a specified 34 time period, the court must consider the relevant policies and factors stated in rule 35 8.63. 36 37 (Subd (

c) amended effective January 1, 2007.) 38 39 (

d) Supervising preparation of record 40 41 The clerk/executive officer of the Supreme Court, under the supervision of the 42 Chief Justice, must take all appropriate steps to ensure that superior court clerks 43

and reporters promptly perform their duties under the rules in this part. This 1 provision does not affect the superior courts’ responsibility for the prompt 2 preparation of appellate records in capital cases. 3 4 (Subd (

d) amended effective January 1, 2018.) 5 6 (

e) Definitions 7 8 For purposes of this part: 9 10

(1) The delivery date of a transcript sent by mail is the mailing date plus five 11 days; and 12 13 (2) “Trial counsel” means both the defendant’s trial counsel and the prosecuting 14 attorney. 15 16 (Subd (

e) amended effective January 1, 2007.) 17 18 Rule 8.600 amended effective January 1, 2018; repealed and adopted as rule 34 effective January 19 1, 2004; previously amended and renumbered effective January 1, 2007. 20 21 Former rule 8.600. Renumbered effective April 25, 2019. 22 Rule 8.600 renumbered as rule 8.603. 23 24 25

Chapter 1. General Provisions 26 27 Rule 8.601.

Definitions 28 29 For purposes of this division: 30 31 (1) “Appointed counsel” or “appointed attorney” means an attorney appointed to 32 represent a person in a death penalty appeal, death penalty–related habeas 33 corpus proceedings, or an appeal of a decision in death penalty–related 34 habeas corpus proceedings.

Appointed counsel may be either lead counsel or 35 associate counsel. 36 37 (2) “Lead counsel” means an appointed attorney or an attorney in the Office of 38 the State Public Defender, the Habeas Corpus Resource Center, the 39 California Appellate Project–San Francisco, or a Court of Appeal district 40 appellate project who is responsible for the overall conduct of the case and 41 for supervising the work of associate and supervised counsel. If two or more 42 attorneys are appointed to represent a person jointly in a death penalty appeal, 43

in death penalty–related habeas corpus proceedings, or in both classes of 1 proceedings together, one such attorney will be designated as lead counsel. 2 3 (3) “Associate counsel” means an appointed attorney who does not have the 4 primary responsibility for the case but nevertheless has casewide 5 responsibility. Associate counsel must meet the same minimum qualifications 6 as lead counsel. 7 8 (4) “Supervised counsel” means an attorney who works under the immediate 9 supervision and direction of lead or associate counsel but is not appointed by 10 the court.

Supervised counsel must be an active member of the State Bar of 11 California. 12 13 (5) “Assisting counsel or entity” means an attorney or entity designated by the 14 appointing court to provide appointed counsel with consultation and resource 15 assistance. An assisting counsel must be an experienced capital appellate 16 counsel or habeas corpus practitioner, as appropriate. An assisting counsel in 17 an automatic appeal must, at a minimum, meet the qualifications for 18 appointed appellate counsel, including the case experience requirements in 19 rule 8.605(c)(2).

An assisting counsel in a habeas corpus proceeding must, at 20 a minimum, meet the qualifications for appointed habeas corpus counsel, 21 including the case experience requirements in rule 8.652(c)(2)(A).

Entities 22 that may be designated include the Office of the State Public Defender, the 23 Habeas Corpus Resource Center, the California Appellate Project–San 24 Francisco, and a Court of Appeal district appellate project. 25 26 (6) “Trial counsel” means both the defendant’s trial counsel and the prosecuting 27 attorney. 28 29 (7) “Panel” means a panel of attorneys from which superior courts may appoint 30 counsel in death penalty–related habeas corpus proceedings. 31 32 (8) “Committee” means a death penalty–related habeas corpus panel committee 33 that accepts and reviews attorney applications to determine whether 34 applicants are qualified for inclusion on a panel. 35 36 Rule 8.601 adopted effective April 25, 2019. 37 38 Advisory Committee Comment 39 40 Number (3).

The definition of “associate counsel” in (3) is intended to make it clear that, 41 although appointed lead counsel has overall and supervisory responsibility in a capital case, 42 appointed associate counsel also has casewide responsibility. 43

Chapter 10.2. Automatic Appeals From Judgments of Death 2 3

Article 1. General Provisions 4 5 Rule 8.603.8.600. In general 6 7 (

a) Automatic appeal to Supreme Court 8 9 If a judgment imposes a sentence of death, an appeal by the defendant is 10 automatically taken to the Supreme Court. 11 12 (

b) Copies of judgment 13 14 When a judgment of death is rendered, the superior court clerk must immediately 15 send certified copies of the commitment to the Supreme Court, the Attorney 16 General, the Governor, the Habeas Corpus Resource Center, and the California 17 Appellate Project in –San Francisco. 18 19 Rule 8.603 renumbered and amended effective April 25, 2019; repealed and adopted as rule 34 20 effective January 1, 2004; previously amended and renumbered as rule 8.600 effective January 1, 21 2007; previously amended effective January 1, 2018. 22 23 24 Rule 8.605. Qualifications of counsel in death penalty appeals and habeas corpus 25 proceedings 26 27 (

a) Purpose 28 29 This rule defines the minimum qualifications for attorneys appointed by the 30 Supreme Court in death penalty appeals and habeas corpus proceedings related to 31 sentences of death. These minimum qualifications are designed to promote 32 competent representation and to avoid unnecessary delay and expense by assisting 33 the court in appointing qualified counsel. Nothing in this rule is intended to be used 34 as a standard by which to measure whether the defendant received effective 35 assistance of counsel. An attorney is not entitled to appointment simply because the 36 attorney meets these minimum qualifications. 37 38 (Subd (

a) amended effective April 25, 2019.) 39 40 (

b) General qualifications 41 42

The Supreme Court may appoint an attorney only if it has determined, after 1 reviewing the attorney’s experience, writing samples, references, and evaluations 2 under (

c) and (

d) through (f) , that the attorney has demonstrated the commitment, 3 knowledge, and skills necessary to competently represent the defendant. An 4 appointed attorney must be willing to cooperate with an assisting counsel or entity 5 that the court may designate. 6 7 (Subd (

b) amended effective April 25, 2019.) 8 9 (

c) Definitions 10 11 As used in this rule: 12 13 (1) “Appointed counsel” or “appointed attorney” means an attorney appointed to 14 represent a person in a death penalty appeal or death penalty–related habeas 15 corpus proceedings in the Supreme Court.

Appointed counsel may be either 16 lead counsel or associate counsel. 17 18 (2) “Lead counsel” means an appointed attorney or an attorney in the Office of 19 the State Public Defender, the Habeas Corpus Resource Center, or the 20 California Appellate Project in San Francisco who is responsible for the 21 overall conduct of the case and for supervising the work of associate and 22 supervised counsel.

If two or more attorneys are appointed to represent a 23 defendant jointly in a death penalty appeal, in death penalty–related habeas 24 corpus proceedings, or in both classes of proceedings together, one such 25 attorney will be designated as lead counsel. 26 27 (3) “Associate counsel” means an appointed attorney who does not have the 28 primary responsibility for the case but nevertheless has casewide 29 responsibility to perform the duties for which that attorney was appointed, 30 whether they are appellate, habeas corpus, or appellate and habeas corpus 31 duties.

Associate counsel must meet the same minimum qualifications as lead 32 counsel. 33 34 (4) “Supervised counsel” means an attorney who works under the immediate 35 supervision and direction of lead or associate counsel but is not appointed by 36 the Supreme Court. Supervised counsel must be an active member of the 37 State Bar of California. 38 39 (5) “Assisting counsel or entity” means an attorney or entity designated by the 40 Supreme Court to provide appointed counsel with consultation and resource 41 assistance. Entities that may be designated include the Office of the State 42

Public Defender, the Habeas Corpus Resource Center, and the California 1 Appellate Project in San Francisco. 2 3 (d)(

c) Qualifications for appointed appellate counsel 4 5 Except as provided in (d), an attorney appointed as lead or associate counsel in a 6 death penalty appeal must have at least satisfy the following minimum 7 qualifications and experience: 8 9

(1) California legal experience 10 11 Active practice of law in California for at least four years. 12 13

(2) Criminal appellate experience 14 15 Either: 16 17 (

A) Service as counsel of record for a defendant either party in seven 18 completed felony appeals, including as counsel of record for a 19 defendant in at least four felony appeals, one of which was a murder 20 case; or 21 22 (

B) Service as: 23 24 (

i) Counsel of record for a defendant either party in five completed 25 felony appeals, including as counsel of record for a defendant in 26 at least three of these appeals; and 27 28 (ii) as Supervised counsel for a defendant in two death penalty 29 appeals in which the opening brief has been filed. Service as 30 supervised counsel in a death penalty appeal will apply toward 31 this qualification only if lead or associate counsel in that appeal 32 attests that the supervised attorney performed substantial work on 33 the case and recommends the attorney for appointment. 34 35

(3) Knowledge 36 37 Familiarity with Supreme Court practices and procedures, including those 38 related to death penalty appeals. 39 40

(4) Training 41 42

(

A) Within three years before appointment, completion of at least nine 1 hours of Supreme Court–approved appellate criminal defense training, 2 continuing education, or course of study, at least six hours of which 3 involve death penalty appeals. Counsel who serves as an instructor in a 4 course that satisfies the requirements of this rule may receive course 5 participation credit for instruction, on request to and approval by the 6 Supreme Court, in an amount to be determined by the Supreme Court. 7 8 (

B) If the Supreme Court has previously appointed counsel to represent a 9 defendant person in a death penalty appeal or a related habeas corpus 10 proceeding, and counsel has provided active representation within three 11 years before the request for a new appointment, the court, after 12 reviewing counsel’s previous work, may find that such representation 13 constitutes compliance with some or all of this requirement. 14 15

(5) Skills 16 17 Proficiency in issue identification, research, analysis, writing, and advocacy, 18 taking into consideration all of the following: 19 20 (

A) Two writing samples—ordinarily appellate briefs—written by the 21 attorney and presenting an analysis of complex legal issues; 22 23 (

B) If the attorney has previously been appointed in a death penalty appeal 24 or death penalty–related habeas corpus proceeding, the evaluation of 25 the assisting counsel or entity in that proceeding; 26 27 (

C) Recommendations from two attorneys familiar with the attorney’s 28 qualifications and performance; and 29 30 (

D) If the attorney is on a panel of attorneys eligible for appointments to 31 represent indigents in the Court of Appeal, the evaluation of the 32 administrator responsible for those appointments. 33 34 (Subd (

c) amended and relettered effective April 25, 2019; adopted as subd (

d) effective 35 January 1, 2005; previously amended effective January 1, 2007.) 36 37 (

e) Qualifications for appointed habeas corpus counsel 38 39 An attorney appointed as lead or associate counsel to represent a person in death 40 penalty–related habeas corpus proceedings must have at least the following 41 qualifications and experience: 42 43

(1) Active practice of law in California for at least four years. 1 2

(2) Either: 3 4 (

A) Service as counsel of record for a defendant in five completed felony 5 appeals or writ proceedings, including one murder case, and service as 6 counsel of record for a defendant in three jury trials or three habeas 7 corpus proceedings involving serious felonies; or 8 9 (

B) Service as counsel of record for a defendant in five completed felony 10 appeals or writ proceedings and service as supervised counsel in two 11 death penalty–related habeas corpus proceedings in which the petition 12 has been filed. Service as supervised counsel in a death penalty–related 13 habeas corpus proceeding will apply toward this qualification only if 14 lead or associate counsel in that proceeding attests that the attorney 15 performed substantial work on the case and recommends the attorney 16 for appointment. 17 18

(3) Familiarity with the practices and procedures of the California Supreme 19 Court and the federal courts in death penalty–related habeas corpus 20 proceedings. 21 22

(4) Within three years before appointment, completion of at least nine hours of 23 Supreme Court–approved appellate criminal defense or habeas corpus 24 defense training, continuing education, or course of study, at least six hours 25 of which address death penalty habeas corpus proceedings. If the Supreme 26 Court has previously appointed counsel to represent a defendant in a death 27 penalty appeal or a related habeas corpus proceeding, and counsel has 28 provided active representation within three years before the request for a new 29 appointment, the court, after reviewing counsel’s previous work, may find 30 that such representation constitutes compliance with this requirement. 31 32

(5) Proficiency in issue identification, research, analysis, writing, investigation, 33 and advocacy, taking into consideration all of the following: 34 35 (

A) Three writing samples—ordinarily two appellate briefs and one habeas 36 corpus petition—written by the attorney and presenting an analysis of 37 complex legal issues; 38 39 (

B) If the attorney has previously been appointed in a death penalty appeal 40 or death penalty–related habeas corpus proceeding, the evaluation of 41 the assisting counsel or entity in that proceeding; 42 43

(

C) Recommendations from two attorneys familiar with the attorney’s 1 qualifications and performance; and 2 3 (

D) If the attorney is on a panel of attorneys eligible for appointments to 4 represent indigent appellants in the Court of Appeal, the evaluation of 5 the administrator responsible for those appointments. 6 7 (f)(

d) Alternative qualifications 8 9 The Supreme Court may appoint an attorney who does not meet the California law 10 practice requirements of (d)(c)(1) and (2) or (e)(1) and or the criminal appellate 11 experience requirements of (c)(2) if the attorney has the qualifications described in 12 (d)(c)(3)–(5) or (e)(3)–(5) and: 13 14

(1) The court finds that the attorney has extensive experience in another 15 jurisdiction or a different type of practice (such as civil trials or appeals, 16 academic work, or work for a court or prosecutor) for at least four years, 17 providing the attorney with experience in complex cases substantially 18 equivalent to that of an attorney qualified under (d)(

c) or (e). 19 20

(2) Ongoing consultation is available to the attorney from an assisting counsel or 21 entity designated by the court. 22 23

(3) Within two years before appointment, the attorney has completed at least 18 24 hours of Supreme Court–approved appellate criminal defense or habeas 25 corpus defense training, continuing education, or course of study, at least 26 nine hours of which involve death penalty appellate or habeas corpus 27 proceedings. The Supreme Court will determine in each case whether the 28 training, education, or course of study completed by a particular attorney 29 satisfies the requirements of this subdivision in light of the attorney’s 30 individual background and experience.

If the Supreme Court has previously 31 appointed counsel to represent a defendant person in a death penalty appeal 32 or a related habeas corpus proceeding, and counsel has provided active 33 representation within three years before the request for a new appointment, 34 the court, after reviewing counsel’s previous work, may find that such 35 representation constitutes compliance with some or all of this requirement. 36 37 (Subd (

d) amended and relettered effective April 25, 2019; adopted as subd (

f) effective 38 January 1, 2005.) 39 40 (

g) Attorneys without trial experience 41 42

If an evidentiary hearing is ordered in a death penalty–related habeas corpus 1 proceeding and an attorney appointed under either (

e) or (

f) to represent a 2 defendant in that proceeding lacks experience in conducting trials or evidentiary 3 hearings, the attorney must associate an attorney who has such experience. 4 5 (h)(

e) Use of supervised counsel 6 7 An attorney who does not meet the qualifications described in (

c) or (d), (e), or (f) 8 may assist lead or associate counsel, but must work under the immediate 9 supervision and direction of lead or associate counsel. 10 11 (Subd (

e) amended and relettered effective April 25, 2019; adopted as subd (

h) effective 12 January 1, 2005.) 13 14 (i)(

f) Appellate and habeas corpus appointment 15 16

(1) An attorney appointed to represent a defendant person in both a death penalty 17 appeal and death penalty–related habeas corpus proceedings must meet the 18 minimum qualifications of both (

d) and (e) (

c) or (

d) and of (

f) rule 8.652. 19 20

(2) Notwithstanding (1), two attorneys together may be eligible for appointment 21 to represent a defendant person jointly in both a death penalty appeal and 22 death penalty–related habeas corpus proceedings if the Supreme Court finds 23 that one attorney satisfies the minimum qualifications set forth in their 24 qualifications in the aggregate satisfy the provisions of both (

d) and (e) (

c) or 25 (d), and the other attorney satisfies the minimum qualifications set forth in of 26 (

f) rule 8.652. 27 28 (Subd (

f) amended and relettered effective April 25, 2019; adopted as subd (

i) effective 29 January 1, 2005.) 30 31 (j)(

g) Designated entities as appointed counsel 32 33

(1) Notwithstanding any other provision of this rule, both the State Public 34 Defender is qualified to serve as appointed counsel in death penalty appeals, 35 the Habeas Corpus Resource Center is qualified to serve as appointed counsel 36 in death penalty–related habeas corpus proceedings, and the California 37 Appellate Project in –San Francisco is are qualified to serve as appointed 38 counsel in both classes of proceedings death penalty appeals. 39 40

(2) When serving as appointed counsel in a death penalty appeal, the State Public 41 Defender or the California Appellate Project in –San Francisco must not 42

assign any attorney as lead counsel unless it finds the attorney qualified under 1 (d)(c)(1)–(5) or the Supreme Court finds the attorney qualified under (f)(d). 2 3

(3) When serving as appointed counsel in a death penalty–related habeas corpus 4 proceeding, the Habeas Corpus Resource Center or the California Appellate 5 Project in San Francisco must not assign any attorney as lead counsel unless 6 it finds the attorney qualified under (e)(1)–(5) or the Supreme Court finds the 7 attorney qualified under (f). 8 9 (Subd (

g) amended and relettered effective April 25, 2019; adopted as subd (

j) effective 10 January 1, 2005.) 11 12 (

k) Attorney appointed by federal court 13 14 Notwithstanding any other provision of this rule, the Supreme Court may appoint 15 an attorney who is under appointment by a federal court in a death penalty–related 16 habeas corpus proceeding for the purpose of exhausting state remedies in the 17 Supreme Court and for all subsequent state proceedings in that case, if the Supreme 18 Court finds that attorney has the commitment, proficiency, and knowledge 19 necessary to represent the defendant competently in state proceedings. 20 21 Rule 8.605 amended effective April 25, 2019; repealed and adopted as rule 76.6 effective January 22 1, 2005; previously amended and renumbered effective January 1, 2007. 23 24 Advisory Committee Comment 25 26 Subdivision (c).

The definition of “associate counsel” in (c)(3) is intended to make it clear that 27 although appointed lead counsel has overall and supervisory responsibility in a capital case, 28 appointed associate counsel also has casewide responsibility to perform the duties for which he or 29 she was appointed, whether they are appellate duties, habeas corpus duties, or appellate and 30 habeas corpus duties. 31 32 33

Chapter 3. Death Penalty–Related Habeas Corpus Proceedings 34 35 Rule 8.652. Qualifications of counsel in death penalty–related habeas corpus 36 proceedings 37 38 (

a) Purpose 39 40 This rule defines the minimum qualifications for attorneys to be appointed by a 41 court to represent a person in a habeas corpus proceeding related to a sentence of 42 death. These minimum qualifications are designed to promote competent 43

representation in habeas corpus proceedings related to sentences of death and to 1 avoid unnecessary delay and expense by assisting the courts in appointing qualified 2 counsel. Nothing in this rule is intended to be used as a standard by which to 3 measure whether a person received effective assistance of counsel. An attorney is 4 not entitled to appointment simply because the attorney meets these minimum 5 qualifications. 6 7 (

b) General qualifications 8 9 An attorney may be included on a panel, appointed by the Supreme Court, or 10 appointed by a court under a local rule as provided in rule 4.562, only if it is 11 determined, after reviewing the attorney’s experience, training, writing samples, 12 references, and evaluations, that the attorney meets the minimum qualifications in 13 this rule and has demonstrated the commitment, knowledge, and skills necessary to 14 competently represent a person in a habeas corpus proceeding related to a sentence 15 of death. An appointed attorney must be willing to cooperate with an assisting 16 counsel or entity that the appointing court designates. 17 18 (

c) Qualifications for appointed habeas corpus counsel 19 20 An attorney included on a panel, appointed by the Supreme Court, or appointed by 21 a court under a local rule as provided in rule 4.562, must satisfy the following 22 minimum qualifications: 23 24

(1) California legal experience 25 26 Active practice of law in California for at least five years. 27 28

(2) Case experience 29 30 The case experience identified in (A), (B), or (C). 31 32 (

A) Service as counsel of record for a petitioner in a death penalty–related 33 habeas corpus proceeding in which the petition has been filed in the 34 California Supreme Court, a Court of Appeal, or a superior court. 35 36 (

B) Service as: 37 38 (

i) Supervised counsel in two death penalty–related habeas corpus 39 proceedings in which the petition has been filed. Service as 40 supervised counsel in a death penalty–related habeas corpus 41 proceeding will apply toward this qualification only if lead or 42 associate counsel in that proceeding attests that the attorney 43

performed substantial work on the case and recommends the 1 attorney for appointment; and 2 3 (ii) Counsel of record for either party in a combination of at least five 4 completed appeals, habeas corpus proceedings, or jury trials in 5 felony cases, including as counsel of record for a petitioner in at 6 least two habeas corpus proceedings, each involving a serious 7 felony in which the petition has been filed.

Service as counsel of 8 record in an appeal where counsel did not file a brief, or in a 9 habeas corpus proceeding where counsel did not file a petition, 10 informal response, or a return, does not satisfy any part of this 11 combined case experience. The combined case experience must 12 be sufficient to demonstrate proficiency in investigation, issue 13 identification, and writing. 14 15 (

C) Service as counsel of record for either party in a combination of at least 16 eight completed appeals, habeas corpus proceedings, or jury trials in 17 felony cases, including as counsel of record for a petitioner in at least 18 two habeas corpus proceedings, each involving a serious felony in 19 which the petition has been filed. Service as counsel of record in an 20 appeal where counsel did not file a brief, or in a habeas corpus 21 proceeding where counsel did not file a petition, informal response, or a 22 return, does not satisfy any part of this combined case experience.

The 23 combined case experience must be sufficient to demonstrate 24 proficiency in investigation, issue identification, and writing. 25 26

(3) Knowledge 27 28 Familiarity with the practices and procedures of the California courts and the 29 federal courts in death penalty–related habeas corpus proceedings. 30 31

(4) Training 32 33 (

A) Within three years before being included on a panel, appointed by the 34 Supreme Court, or appointed by a court under a local rule as provided 35 in rule 4.562, completion of at least 15 hours of appellate criminal 36 defense or habeas corpus defense training approved for Minimum 37 Continuing Legal Education credit by the State Bar of California, at 38 least 10 hours of which address death penalty–related habeas corpus 39 proceedings. 40 41 (

B) Counsel who serves as an instructor in a course that satisfies the 42 requirements of this rule may receive course participation credit for 43

instruction, on request to and approval by the committee, the Supreme 1 Court, or a court appointing counsel under a local rule as provided in 2 rule 4.562, in an amount to be determined by the approving entity. 3 4 (

C) If the attorney has previously represented a petitioner in a death 5 penalty–related habeas corpus proceeding, the committee, the Supreme 6 Court, or the court appointing counsel under a local rule as provided in 7 rule 4.562, after reviewing counsel’s previous work, may find that such 8 representation constitutes compliance with some or all of this 9 requirement. 10 11

(5) Skills 12 13 Demonstrated proficiency in issue identification, research, analysis, writing, 14 investigation, and advocacy. To enable an assessment of the attorney’s skills: 15 16 (

A) The attorney must submit: 17 18 (

i) Three writing samples written by the attorney and presenting 19 analyses of complex legal issues. If the attorney has previously 20 served as lead counsel of record for a petitioner in a death 21 penalty–related habeas corpus proceeding, these writing samples 22 must include one or more habeas corpus petitions filed by the 23 attorney in that capacity.

If the attorney has previously served as 24 associate or supervised counsel for a petitioner in a death 25 penalty–related habeas corpus proceeding, these writing samples 26 must include the portion of the habeas corpus petition prepared 27 by the attorney in that capacity.

If the attorney has not served as 28 lead counsel of record for a petitioner in a death penalty–related 29 habeas corpus proceeding, these writing samples must include 30 two or more habeas corpus petitions filed by the attorney as 31 counsel of record for a petitioner in a habeas corpus proceeding 32 involving a serious felony; and 33 34 (ii) Recommendations from two attorneys familiar with the 35 attorney’s qualifications and performance. 36 37 (

B) The committee, the Supreme Court, or the court appointing counsel 38 under a local rule as provided in rule 4.562, must obtain and review: 39 40 (

i) If the attorney has previously been appointed in a death penalty 41 appeal or death penalty–related habeas corpus proceeding, the 42

evaluation of the assisting counsel or entity in those proceedings; 1 and 2 3 (ii) If the attorney is on a panel of attorneys eligible for appointments 4 to represent indigent appellants in the Court of Appeal, the 5 evaluation of the administrator responsible for those 6 appointments. 7 8 (

d) Alternative experience 9 10 An attorney who does not meet the experience requirements of (c)(1) and (2) may 11 be included on a panel or appointed by the Supreme Court if the attorney meets the 12 qualifications described in (c)(3) and (5), excluding the writing samples described 13 in (c)(5)(A)(i), and: 14 15

(1) The committee or the Supreme Court finds that the attorney has: 16 17 (

A) Extensive experience as an attorney at the Habeas Corpus Resource 18 Center or the California Appellate Project–San Francisco, or in another 19 jurisdiction or a different type of practice (such as civil trials or 20 appeals, academic work, or work for a court or as a prosecutor), for at 21 least five years, providing the attorney with experience in complex 22 cases substantially equivalent to that of an attorney qualified under 23 (c)(1) and (2); and 24 25 (

B) Demonstrated proficiency in issue identification, research, analysis, 26 writing, investigation, and advocacy. To enable an assessment of the 27 attorney’s skills, the attorney must submit three writing samples written 28 by the attorney and presenting analyses of complex legal issues, 29 including habeas corpus petitions filed by the attorney, if any. 30 31

(2) Ongoing consultation is available to the attorney from an assisting counsel or 32 entity designated by the court. 33 34

(3) Within two years before being included on a panel or appointed by the 35 Supreme Court, the attorney has completed at least 18 hours of appellate 36 criminal defense or habeas corpus defense training approved for Minimum 37 Continuing Legal Education credit by the State Bar of California, at least 10 38 hours of which involve death penalty–related habeas corpus proceedings. The 39 committee or the Supreme Court will determine whether the training 40 completed by an attorney satisfies the requirements of this subdivision in 41 light of the attorney’s individual background and experience. 42 43

(

e) Attorneys without trial experience 1 2 If an evidentiary hearing is ordered in a death penalty–related habeas corpus 3 proceeding and an attorney appointed under (

c) or (

d) to represent a person in that 4 proceeding lacks experience in conducting trials or evidentiary hearings, the 5 attorney must associate with an attorney who has such experience. 6 7 (

f) Use of supervised counsel 8 9 An attorney who does not meet the qualifications described in (

c) or (

d) may assist 10 lead or associate counsel, but must work under the immediate supervision and 11 direction of lead or associate counsel. 12 13 (

g) Appellate and habeas corpus appointment 14 15

(1) An attorney appointed to represent a person in both a death penalty appeal 16 and death penalty–related habeas corpus proceedings must meet the 17 minimum qualifications of both (

c) or (

d) and rule 8.605. 18 19

(2) Notwithstanding (1), two attorneys together may be eligible for appointment 20 to represent a person jointly in both a death penalty appeal and death penalty–21 related habeas corpus proceedings if it is determined that one attorney 22 satisfies the minimum qualifications stated in (

c) or (

d) and the other attorney 23 satisfies the minimum qualifications stated in rule 8.605. 24 25 (

h) Entities as appointed counsel 26 27

(1) Notwithstanding any other provision of this rule, the Habeas Corpus 28 Resource Center and the California Appellate Project–San Francisco are 29 qualified to serve as appointed counsel in death penalty–related habeas 30 corpus proceedings. 31 32

(2) When serving as appointed counsel in a death penalty–related habeas corpus 33 proceeding, the Habeas Corpus Resource Center or the California Appellate 34 Project–San Francisco must not assign any attorney as lead counsel unless it 35 finds the attorney is qualified under (

c) or (d). 36 37 (

i) Attorney appointed by federal court 38 39 Notwithstanding any other provision of this rule, a court may appoint an attorney 40 who is under appointment by a federal court in a death penalty–related habeas 41 corpus proceeding for the purpose of exhausting state remedies in the California 42 courts if the court finds that the attorney has the commitment, proficiency, and 43

knowledge necessary to represent the person competently in state proceedings. 1 Counsel under appointment by a federal court is not required to also be appointed 2 by a state court in order to appear in a state court proceeding. 3 4 Rule 8.652 adopted effective April 25, 2019. 5 6