(a) Purpose
This rule defines the minimum qualifications for attorneys to be appointed by a court to represent a person in a habeas corpus proceeding related to a sentence of death. These minimum qualifications are designed to promote competent representation in habeas corpus proceedings related to sentences of death and to avoid unnecessary delay and expense by assisting the courts in appointing qualified counsel. Nothing in this rule is intended to be used as a standard by which to measure whether a person received effective assistance of counsel. An attorney is not entitled to appointment simply because the attorney meets these minimum qualifications.
(b) General qualifications
An attorney may be included on a panel, appointed by the Supreme Court, or appointed by a court under a local rule as provided in rule 4.562, only if it is determined, after reviewing the attorney's experience, training, writing samples, references, and evaluations, that the attorney meets the minimum qualifications in this rule and has demonstrated the commitment, knowledge, and skills necessary to competently represent a person in a habeas corpus proceeding related to a sentence of death. An appointed attorney must be willing to cooperate with an assisting counsel or entity that the appointing court designates.
(c) Qualifications for appointed habeas corpus counsel
An attorney included on a panel, appointed by the Supreme Court, or appointed by a court under a local rule as provided in rule 4.562, must satisfy the following minimum qualifications:
(1) California legal experience
Active practice of law in California for at least five years.
(2) Case experience
The case experience identified in (A), (B), or (C).
(A) Service as counsel of record for a petitioner in a death penalty-related habeas corpus proceeding in which the petition has been filed in the California Supreme Court, a Court of Appeal, or a superior court.
(B) Service as:
(i) 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; and
(ii) Counsel of record for either party in a combination of at least five completed appeals, habeas corpus proceedings, or jury trials in felony cases, including as counsel of record for a petitioner in at least two habeas corpus proceedings, each involving a serious felony in which the petition has been filed. Service as counsel of record in an appeal where counsel did not file a brief, or in a habeas corpus proceeding where counsel did not file a petition, informal response, or a return, does not satisfy any part of this combined case experience. The combined case experience must be sufficient to demonstrate proficiency in investigation, issue identification, and writing.
(C) Service as counsel of record for either party in a combination of at least eight completed appeals, habeas corpus proceedings, or jury trials in felony cases, including as counsel of record for a petitioner in at least two habeas corpus proceedings, each involving a serious felony in which the petition has been filed. Service as counsel of record in an appeal where counsel did not file a brief, or in a habeas corpus proceeding where counsel did not file a petition, informal response, or a return, does not satisfy any part of this combined case experience. The combined case experience must be sufficient to demonstrate proficiency in investigation, issue identification, and writing.
(3) Knowledge
Familiarity with the practices and procedures of the California courts and the federal courts in death penalty-related habeas corpus proceedings.
(4) Training
(A) Within three years before being included on a panel, appointed by the Supreme Court, or appointed by a court under a local rule as provided in rule 4.562, completion of at least 15 hours of appellate criminal defense or habeas corpus defense training approved for Minimum Continuing Legal Education credit by the State Bar of California, at least 10 hours of which address death penalty-related habeas corpus proceedings.
(B) Counsel who serves as an instructor in a course that satisfies the requirements of this rule may receive course participation credit for instruction, on request to and approval by the committee, the Supreme Court, or a court appointing counsel under a local rule as provided in rule 4.562, in an amount to be determined by the approving entity.
(C) If the attorney has previously represented a petitioner in a death penalty-related habeas corpus proceeding, the committee, the Supreme Court, or the court appointing counsel under a local rule as provided in rule 4.562, after reviewing counsel's previous work, may find that such representation constitutes compliance with some or all of this requirement.
(5) Skills
Demonstrated proficiency in issue identification, research, analysis, writing, investigation, and advocacy. To enable an assessment of the attorney's skills:
(A) The attorney must submit:
(i) Three writing samples written by the attorney and presenting analyses of complex legal issues. If the attorney has previously served as lead counsel of record for a petitioner in a death penalty-related habeas corpus proceeding, these writing samples must include one or more habeas corpus petitions filed by the attorney in that capacity. If the attorney has previously served as associate or supervised counsel for a petitioner in a death penalty-related habeas corpus proceeding, these writing samples must include the portion of the habeas corpus petition prepared by the attorney in that capacity. If the attorney has not served as lead counsel of record for a petitioner in a death penalty-related habeas corpus proceeding, these writing samples must include two or more habeas corpus petitions filed by the attorney as counsel of record for a petitioner in a habeas corpus proceeding involving a serious felony; and
(ii) Recommendations from two attorneys familiar with the attorney's qualifications and performance.
(B) The committee, the Supreme Court, or the court appointing counsel under a local rule as provided in rule 4.562, must obtain and review:
(i) 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 those proceedings; and
(ii) 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.
(d) Alternative experience
An attorney who does not meet the experience requirements of (c)(1) and (2) may be included on a panel or appointed by the Supreme Court if the attorney meets the qualifications described in (c)(3) and (5), excluding the writing samples described in (c)(5)(A)(i), and:
(1) The committee or the Supreme Court finds that the attorney has:
(A) Extensive experience as an attorney at the Habeas Corpus Resource Center or the California Appellate Project-San Francisco, or in another jurisdiction or a different type of practice (such as civil trials or appeals, academic work, or work for a court or as a prosecutor), for at least five years, providing the attorney with experience in complex cases substantially equivalent to that of an attorney qualified under (c)(1) and (2); and
(B) Demonstrated proficiency in issue identification, research, analysis, writing, investigation, and advocacy. To enable an assessment of the attorney's skills, the attorney must submit three writing samples written by the attorney and presenting analyses of complex legal issues, including habeas corpus petitions filed by the attorney, if any.
(2) Ongoing consultation is available to the attorney from an assisting counsel or entity designated by the court.
(3) Within two years before being included on a panel or appointed by the Supreme Court, the attorney has completed at least 18 hours of appellate criminal defense or habeas corpus defense training approved for Minimum Continuing Legal Education credit by the State Bar of California, at least 10 hours of which involve death penalty-related habeas corpus proceedings. The committee or the Supreme Court will determine whether the training completed by an attorney satisfies the requirements of this subdivision in light of the attorney's individual background and experience.
(e) Attorneys without trial experience
If an evidentiary hearing is ordered in a death penalty-related habeas corpus proceeding and an attorney appointed under (c) or (d) to represent a person in that proceeding lacks experience in conducting trials or evidentiary hearings, the attorney must associate with an attorney who has such experience.
(f) Use of supervised counsel
An attorney who does not meet the qualifications described in (c) or (d) may assist lead or associate counsel, but must work under the immediate supervision and direction of lead or associate counsel.
(g) Appellate and habeas corpus appointment
(1) An attorney appointed to represent a person in both a death penalty appeal and death penalty-related habeas corpus proceedings must meet the minimum qualifications of both (c) or (d) and rule 8.605.
(2) Notwithstanding (1), two attorneys together may be eligible for appointment to represent a person jointly in both a death penalty appeal and death penalty-related habeas corpus proceedings if it is determined that one attorney satisfies the minimum qualifications stated in (c) or (d) and the other attorney satisfies the minimum qualifications stated in rule 8.605.
(h) Entities as appointed counsel
(1) Notwithstanding any other provision of this rule, the Habeas Corpus Resource Center and the California Appellate Project-San Francisco are qualified to serve as appointed counsel in death penalty-related habeas corpus proceedings.
(2) When serving as appointed counsel in a death penalty-related habeas corpus proceeding, the Habeas Corpus Resource Center or the California Appellate Project-San Francisco must not assign any attorney as lead counsel unless it finds the attorney is qualified under (c) or (d).
(i) Attorney appointed by federal court
Notwithstanding any other provision of this rule, a 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 California courts if the court finds that the attorney has the commitment, proficiency, and knowledge necessary to represent the person competently in state proceedings. Counsel under appointment by a federal court is not required to also be appointed by a state court in order to appear in a state court proceeding.
Rule 8.652 adopted effective April 25, 2019.