Habeas Corpus - New Second Circuit Local Rules

On Thursday, the Second Circuit announced that new local rules will be taking effect on January 1, 2010. The changes are available here. There are many, many changes that impact how to perfect appeals in all cases before the Second Circuit.

As for those that specifically affect habeas cases, there's local rule 22.1 and 22.2.

I have discussed the changes to rule 22.1, the one that affects COA's, before. But I'll post it again because it's important:

Local Rule 22.1 Certificate of Appealability

(a) Request to This Court for a COA. In a case governed by 28 U.S.C. § 2253 and FRAP 22(b), this court will not act on a request for a certificate of appealability (COA) unless the district court has denied a COA. If the district court denies a COA, the applicant must, within 28 days after the later of that denial or the filing of the notice of appeal, request a COA in this court. The request must include a copy of the district judge’s order denying the COA, and a statement that (1) identifies each issue that the applicant intends to raise on appeal and the relevant facts, and (2) makes a substantial showing of a denial of a constitutional right as to each issue. A request to this court for a COA is decided without oral argument. The court ordinarily limits its consideration of the request to the issues identified in the request. The appeal may not proceed unless a COA has been issued.

(b) Timing. If a COA issues, the later of that date or the filing of the notice of appeal serves as the date of the notice of appeal for calculating time under FRAP and these Local Rules.

What's crucially important about this local rule is that it requires that a petitioner first seek a COA in the district court before applying for one in the Circuit. That is so important to keep in mind since the general Federal Rules of Appellate Procedure have been changed to remove that requirement, as I discussed here. I have edited that prior post to make clear that those concerned changes to the general rules, not the local rules.

The other habeas-related rule change is to Rule 22.2 concerning Second or Successive Petitions:

Local Rule 22.2 Second or Successive Applications Under § 2254 or § 2255

(a) Transfer Required. When an unauthorized second or successive application under 28 U.S.C. § 2254 or § 2255 is filed in district court, the district court will transfer it to the circuit court in accordance with 28 U.S.C. § 1631.

(b) Notice to Applicant. Upon transfer under (a), this court will send a notice to the applicant that the applicant must, within 45 days after the notice date, move in the circuit court for authorization under 28 U.S.C. § 2244 to file a second or successive application.

(c) Motion Contents. Any motion for authorization to file a second or successive application under 28 U.S.C. § 2254 or § 2255 must (1) use the appropriate Second Circuit form, and (2) attach copies of all prior applications for § 2254 or § 2255 relief and any resulting district court decisions, including any written opinions.

(d) Failure to Comply. Failure to comply with any of these requirements may result in denial of the motion.

Pretty straightforward.