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2014 California Rules of Court

Rule 8.605. Qualifications of counsel in death penalty appeals and habeas corpus proceedings

(a) Purpose

This rule defines the minimum qualifications for attorneys appointed by the Supreme Court in death penalty appeals and habeas corpus proceedings related to sentences of death. An attorney is not entitled to appointment simply because the attorney meets these minimum qualifications.

(b) General qualifications

The Supreme Court may appoint an attorney only if it has determined, after reviewing the attorney's experience, writing samples, references, and evaluations under (d) through (f), that the attorney has demonstrated the commitment, knowledge, and skills necessary to competently represent the defendant. An appointed attorney must be willing to cooperate with an assisting counsel or entity that the court may designate.

(c) Definitions

As used in this rule:

(1)"Appointed counsel" or "appointed attorney" means an attorney appointed to represent a person in a death penalty appeal or death penalty-related habeas corpus proceedings in the Supreme Court. Appointed counsel may be either lead counsel or associate counsel.

(2)"Lead counsel" means an appointed attorney or an attorney in the Office of the State Public Defender, the Habeas Corpus Resource Center, or the California Appellate Project in San Francisco who is responsible for the overall conduct of the case and for supervising the work of associate and supervised counsel. If two or more attorneys are appointed to represent a defendant jointly in a death penalty appeal, in death penalty-related habeas corpus proceedings, or in both classes of proceedings together, one such attorney will be designated as lead counsel.

(3)"Associate counsel" means an appointed attorney who does not have the primary responsibility for the case but nevertheless has casewide responsibility to perform the duties for which that attorney was appointed, whether they are appellate, habeas corpus, or appellate and habeas corpus duties. Associate counsel must meet the same minimum qualifications as lead counsel.

(4)"Supervised counsel" means an attorney who works under the immediate supervision and direction of lead or associate counsel but is not appointed by the Supreme Court. Supervised counsel must be an active member of the State Bar of California.

(5)"Assisting counsel or entity" means an attorney or entity designated by the Supreme Court to provide appointed counsel with consultation and resource assistance. Entities that may be designated include the Office of the State Public Defender, the Habeas Corpus Resource Center, and the California Appellate Project in San Francisco.

(d) Qualifications for appointed appellate counsel

An attorney appointed as lead or associate counsel in a death penalty appeal must have at least the following qualifications and experience:

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

(2)Either:

(A)Service as counsel of record for a defendant in seven completed felony appeals, including one murder case; or

(B)Service as counsel of record for a defendant in five completed felony appeals and as supervised counsel for a defendant in two death penalty appeals in which the opening brief has been filed. Service as supervised counsel in a death penalty appeal will apply toward this qualification only if lead or associate counsel in that appeal attests that the supervised attorney performed substantial work on the case and recommends the attorney for appointment.

(3)Familiarity with Supreme Court practices and procedures, including those related to death penalty appeals.

(4)Within three years before appointment, completion of at least nine hours of Supreme Court-approved appellate criminal defense training, continuing education, or course of study, at least six hours of which involve death penalty appeals. If the Supreme Court has previously appointed counsel to represent a defendant in a death penalty appeal or a related habeas corpus proceeding, and counsel has provided active representation within three years before the request for a new appointment, the court, after reviewing counsel's previous work, may find that such representation constitutes compliance with this requirement.

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

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

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

(C)Recommendations from two attorneys familiar with the attorney's qualifications and performance; and

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

(Subd (d) amended effective January 1, 2007.)

(e) Qualifications for appointed habeas corpus counsel

An attorney appointed as lead or associate counsel to represent a person in death penalty-related habeas corpus proceedings must have at least the following qualifications and experience:

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

(2)Either:

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

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

(3)Familiarity with the practices and procedures of the California Supreme Court and the federal courts in death penalty-related habeas corpus proceedings.

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

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

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

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

(C)Recommendations from two attorneys familiar with the attorney's qualifications and performance; and

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

(Subd (e) amended effective January 1, 2007.)

(f) Alternative qualifications

The Supreme Court may appoint an attorney who does not meet the requirements of (d)(1) and (2) or (e)(1) and (2) if the attorney has the qualifications described in (d)(3)-(5) or (e)(3)-(5) and:

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

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

(3)Within two years before appointment, the attorney has completed at least 18 hours of Supreme Court-approved appellate criminal defense or habeas corpus defense training, continuing education, or course of study, at least nine hours of which involve death penalty appellate or habeas corpus proceedings. The Supreme Court will determine in each case whether the training, education, or course of study completed by a particular attorney satisfies the requirements of this subdivision in light of the attorney's individual background and experience. If the Supreme Court has previously appointed counsel to represent a defendant in a death penalty appeal or a related habeas corpus proceeding, and counsel has provided active representation within three years before the request for a new appointment, the court, after reviewing counsel's previous work, may find that such representation constitutes compliance with this requirement.

(g) Attorneys without trial experience

If an evidentiary hearing is ordered in a death penalty-related habeas corpus proceeding and an attorney appointed under either (e) or (f) to represent a defendant in that proceeding lacks experience in conducting trials or evidentiary hearings, the attorney must associate an attorney who has such experience.

(h) Use of supervised counsel

An attorney who does not meet the qualifications described in (d), (e), or (f) may assist lead or associate counsel, but must work under the immediate supervision and direction of lead or associate counsel.

(i) Appellate and habeas corpus appointment

(1)An attorney appointed to represent a defendant in both a death penalty appeal and death penalty-related habeas corpus proceedings must meet the minimum qualifications of both (d) and (e) or of (f).

(2)Notwithstanding (1), two attorneys together may be eligible for appointment to represent a defendant jointly in both a death penalty appeal and death penalty-related habeas corpus proceedings if the Supreme Court finds that their qualifications in the aggregate satisfy the provisions of both (d) and (e) or of (f).

(j) Designated entities as appointed counsel

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

(2)When serving as appointed counsel in a death penalty appeal, the State Public Defender or the California Appellate Project in San Francisco must not assign any attorney as lead counsel unless it finds the attorney qualified under (d)(1)-(5) or the Supreme Court finds the attorney qualified under (f).

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

(k) Attorney appointed by federal court

Notwithstanding any other provision of this rule, the Supreme Court may appoint an attorney who is under appointment by a federal court in a death penalty-related habeas corpus proceeding for the purpose of exhausting state remedies in the Supreme Court and for all subsequent state proceedings in that case, if the Supreme Court finds that attorney has the commitment, proficiency, and knowledge necessary to represent the defendant competently in state proceedings.

Rule 8.605 amended and renumbered effective January 1, 2007; repealed and adopted as rule 76.6 effective January 1, 2005.

Advisory Committee Comment

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

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