Eastern District of Kentucky
FILED
UNITED STATES DISTRICT COURT
Jun - 28 2018
EASTERN DISTRICT OF KENTUCKY
Robert R. Carr
GENERAL ORDER NO. 18-13 Clerk, U.S. District Court
ADMINISTRATIVE ORDER
REGARDING DEATH PENALTY CASES
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The judges of this Court have unanimously agreed to the following policies and
procedures designed to facilitate the prompt and efficient processing of habeas corpus
petitions and civil actions filed by persons upon whom a sentence of death has been
imposed which challenge their conviction, sentence, or the manner or method of
execution. Accordingly, it is hereby
ORDERED as follows:
1. Scope. This Order applies to “Death Penalty Cases,” which shall include
(a) Any habeas corpus petition filed pursuant to 28 U.S.C. §2254 by a
petitioner under a sentence of death, regardless of whether an execution
date has been set; and
(b) Any civil action filed by a plaintiff under a sentence of death challenging
the manner or method of execution, regardless of whether an execution
date has been set.
2. Assignment.
(a) All Death Penalty Cases shall be assigned by the Clerk of the Court under
a separate blind random draw from the pool of active judges, with the
exceptions of Judge William O. Bertelsman, Judge Henry Wilhoit, Jr., and
Judge Joseph M. Hood regardless of the division in which they are filed.
No judge shall receive a second assignment until all judges eligible to
receive an assignment have received one assignment.
(b) Once a given petitioner files a habeas corpus Death Penalty Case of the
type described in Section 1(a) above, all subsequent petitions, cases, writs,
appeals, or other filings by the same person challenging the same
conviction or sentence shall be assigned by the Clerk of the Court to the
same judge assigned to the original petition, provided that judge remains
in the assignment pool for Death Penalty Cases at the time the subsequent
pleading is filed.
(c) Once a given civil Death Penalty Case of the type described in Section
1(b) above is filed challenging a particular manner or method of executing
a sentence of death, all subsequent petitions, cases, writs, appeals, or other
filings challenging the same manner or method of executing a sentence of
death shall be assigned by the Clerk of the Court to the same judge
assigned to the original case, provided that judge remains in the
assignment pool for Death Penalty Cases at the time the subsequent
pleading is filed.
(d) If a judge recuses from a Death Penalty Case at any time, the case shall be
reassigned to another judge in the Death Penalty Case assignment pool.
Should all judges in the assignment pool recuse, the case will be referred
to the Chief Judge for the United States Court of appeals for the Sixth
Circuit for reassignment.
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3. Clerk’s Office Procedures Upon Filing.
(a) When a Death Penalty Case is filed, the Deputy Clerk shall assign the case
to a judge using the separate blind random draw for Death Penalty Cases.
(b) The Deputy Clerk shall notify the Clerk of the Court and the Operations
Manager.
(c) The Clerk of the Court, the Operations Manager, or the Clerk’s designee
shall personally notify the judge of the assignment and inquire whether he
or she wants the case referred to a Magistrate Judge or the Pro Se Office.
(d) The Clerk of the Court, the Operations Manager, or the Clerk’s designee
shall also notify the following persons of the filing of the Death Penalty
Case: (1) any person designed by the Court of Appeals for the Sixth
Circuit to receive such notice; (2) the Pro Se Office or Magistrate Judge, if
the assigned judge makes such a referral; (3) the Office of the Attorney
General of Kentucky; and (4) the Kentucky Department of Corrections.
4. Inquiries from the Press. The following is for the benefit of the public and the
press to understand the Court’s policy with respect to comment on cases pending
before the Court.
(a) A Court addresses all aspects of a case pending before it only through its
Opinions and Orders. No person in the Clerk’s Office is authorized or
permitted to speak for the Court, to comment upon the merits of any case,
to explain any action or inaction by any party or the Court, or to predict
the outcome of any case or proceeding. Neither the Clerk of the Court nor
any members of the Clerk’s Office shall make any extraneous comments
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about a case or attempt to explain an Order or Memorandum Opinion
entered by the Court, and any such comment should not be attributed to
the Court.
(b) The Clerk’s Office is an administrative office designed to serve the Court,
the public, and attorneys. Accordingly, while the Clerk’s Office may give
information concerning filing, rules, and administrative procedures
approved by the Court, it cannot give legal advice.
(c) Any inquiry from the press regarding a Death Penalty Case pending before
the Court will be referred to the Clerk of the Court or the Operations
Manager for response. If the Clerk of the Court or the Operations Manager
is uncertain of the propriety of responding to the inquiry or the substance
of the response, he or she will confer with the presiding judge or the Chief
Judge of the Court before responding to the inquiry.
(d) Any Order in a Death Penalty Case, including any Order regarding a stay
of execution, will be entered into the Court’s electronic filing system,
PACER, and will be available to the public and the media through that
system unless otherwise ordered by the Court.
(e) Questions regarding this Order, the Court’s policies regarding contact with
the press, or their implementation should be directed to the Chief Judge.
5. Clerk’s Office Procedures when a Motion to Stay Execution has been Filed.
If a motion to stay execution is filed, the Clerk of the Court, the Operations
Manager, or the Clerk’s designee shall immediately:
(a) Notify the presiding judge;
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(b) Notify:
(1) Any person designated by the Court of Appeals for the Sixth
Circuit to receive such notice;
(2) The Pro Se Office or Magistrate Judge, if the assigned judge makes
such a referral;
(3) The Office of the Attorney General of Kentucky;
(4) The Warden at the Kentucky State Penitentiary;
(5) The General Counsel for the Kentucky Department of Corrections;
(6) The General Counsel for Kentucky Governor; and
(7) The Chief Justice of the Supreme Court of Kentucky.
(c) Notify all persons identified in (b) above when the Court enters an Order
which may affect the execution date.
(d) Notify the Court of Appeals for the Sixth Circuit at any time (1) if it
appears that a stay of execution will not be entered, or (2) an appealable
Order is entered.
(e) Remind all counsel of record of Sixth Circuit Rule 22(c), Death Penalty
Cases, which “applies to all applications for relief under §2254 or §2255
by persons under sentence of death.” 6 Cir.R. 22(c)(1).
6. Clerk’s Office Procedures Immediately Before the Date of Execution. On the
calendar day before an execution is set to take place, the Court and the Clerk’s
Office will observe the following procedures:
(a) The Clerk’s Office shall remain open to receive filings in the Death
Penalty Case until either the execution is carried out or a stay of execution
is issued. The Clerk’s Office will have a minimum of two (2) experienced
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personnel on duty, one of which will be the Clerk of the Court, the
Operations Manager, or the Clerk’s designee.
(b) The presiding judge will be available to address emergency matters in the
Death Penalty Case at the courthouse, at home, or at a place where he or
she can be reached without delay by telephone, e-mail, or fax, along with
such staff as the judge deems necessary, including an official court
reporter.
(c) If an emergency situation arises which involves the grant or denial of a
stay of execution and requires the Clerk’s Office to remain open after
normal working hours, the Clerk of the Court, the Operations manager, or
the Clerk’s designee will remain on duty to supervise the work to be done
until it is completed and entered into the record.
This Order supersedes General Order 17-2.
IT IS SO ORDERED.
Dated June 28, 2018.
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