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2021 California Rules of Court

Rule 4.561. Superior court appointment of counsel in death penalty-related habeas corpus proceedings

(a) Purpose

This rule, in conjunction with rule 4.562, establishes a mechanism for superior courts to appoint qualified counsel to represent indigent persons in death penalty-related habeas corpus proceedings. This rule governs the appointment of counsel by superior courts only, including when the Supreme Court or a Court of Appeal has transferred a habeas corpus petition without having appointed counsel for the petitioner. It does not govern the appointment of counsel by the Supreme Court or a Court of Appeal.

(b) Prioritization of oldest judgments

In the interest of equity, both to the families of victims and to persons sentenced to death, California courts, whenever possible, should appoint death penalty-related habeas corpus counsel first for those persons subject to the oldest judgments of death.

(c) List of persons subject to a judgment of death

The Habeas Corpus Resource Center must maintain a list of persons subject to a judgment of death, organized by the date the judgment was entered by the sentencing court. The list must indicate whether death penalty-related habeas corpus counsel has been appointed for each person and, if so, the date of the appointment. The list must also indicate for each person whether a petition is pending in the Supreme Court.

(d) Notice of oldest judgments without counsel

(1)  Within 30 days of the effective date of this rule, the Habeas Corpus Resource Center must identify the persons on the list required by (c) with the 25 oldest judgments of death for whom death penalty-related habeas corpus counsel have not been appointed.

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

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

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

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

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

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

(e) Appointment of counsel

(1)  After the court receives a notice under (d)(2) and has made the findings required by Government Code section 68662, the appropriate judge must appoint a qualified attorney or attorneys to represent the person in death penalty-related habeas corpus proceedings.

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

(3)  When the court appoints counsel to represent a person in a death penalty-related habeas corpus proceeding under this subdivision, the court must complete and enter an Order Appointing Counsel in Death Penalty-Related Habeas Corpus Proceeding (form HC-101).

Rule 4.561 adopted effective April 25, 2019.

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