Vol. 34, No. 9
From the Courts
United States Court of Appeals for the Tenth Circuit
Notice of Proposed Rule Changes
Immediate Public Comment Requested
The U.S. Court of Appeals for the Tenth Circuit announced proposed changes to the Tenth Circuit Rules. Comments are requested immediately and may be sent to: Clerk of the Court, Patrick J. Fisher, Jr., U.S. Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout St., Denver, CO 80257. Comments also may be made on the Court’s website at http://www.ca10.uscourts.gov; click on "Rules & Forms."
By the Court:
Patrick J. Fisher, Jr.
Clerk of Court
Tenth Circuit Rules Proposed Changes
10th Cir. R. 3.4 Docketing statement.
. . .
(B) Number of copies. An original and
47 copies of the docketing statement must be filed.
. . .
10th Cir. R. 8
8.2 Emergency or ex parte motions
(A) Emergency relief. . . .
(3) the time and date the order becomes effective
(4) the telephone numbers and electronic mail addresses, if available, of opposing counsel.
10th Cir. R. 15
15.1 Docketing statement. Within 14 days after filing a petition for review or an application for enforcement, the filing party must file an original and
47 copies of a docketing statement on a form provided by the court.
. . .
10th Cir. R. 22
. . .
(C) Proceedings in District Courts. The district court must consider the propriety of issuing a certificate of appealability in the first instance. Failure of the district court to issue a certificate of appealability within thirty days of filing the notice of appeal shall be deemed a denial.
(D) Briefing. Respondent-appellees shall not file a brief until requested to do so by this court.
22.4 Motions for Leave to File Second or Successive Habeas Petition
All motions for leave to file a second or successive habeas petition must be accompanied by the petition that is proposed to be filed.
. . .
10th Cir. R. 24
24.1 Prison Litigation Reform Act
All prisoners bringing civil actions or appeals shall pay the full amount of the filing fee. 28 U.S.C. § 1915(b)(1). Consequently, if a prisoner tenders no filing fee, or less than the full fee, when a notice of appeal is filed, the district court shall obtain sufficient information to determine the prisoner’s eligibility for, and make the assessment of, a partial filing fee under the Act. If the prisoner has sufficient funds, the entire filing fee shall be assessed immediately. The partial fee determination must take place regardless of whether the prisoner’s status was examined at the time the complaint or other initial pleading was submitted to the district court. The appeal should be processed and submitted to this court in the normal course, as required by Federal Rule of Appellate Procedure 3(d), without waiting for the determination of the prisoner’s eligibility for paying less than the full filing fee. When the district court makes its determination, it shall enter an order and send a copy to this court. If the in forma pauperis application reveals that the prisoner has no assets and no means to pay an initial partial filing fee, 28 U.S.C. § 1915(b)(4), the district court’s determination order must reflect that finding.
24.2 Duty of Prisoner Appellant
The appellant shall authorize the custodian to deduct payments from the institutional account and the custodian will pay the assessment. Notice shall be given to this court if the prisoner does not provide the information required under the Act or does not authorize payment from his or her institutional account. Filing fee payments shall be made to the clerk of the district court pursuant to Fed. R. App. P. 3(e).
. . .
10th Cir. R. 25
25.1 Electronic Case Filing. As authorized by Fed. R. App. P. 25(a)(2)(D), the court adopts an Electronic Case Filing system. Cases may be designated for inclusion in the system by case type or by the particular case or cases. All papers, except the initial petition in an original proceeding, filed in cases included in the system must be filed electronically in compliance with procedures adopted by the court and maintained by the clerk.
. . .
27.2 Summary disposition on motion by a party or the court.
(A) Motions to dismiss or affirm.
(1) Types. A party may file only the following dispositive motions:
(a) a motion to dismiss the entire case for lack of appellate jurisdiction or as authorized by Fed. R. App. P. 31(c) or 42(b);
(b) a motion for summary disposition because of a supervening change of law or mootness;
(c) a motion to remand for additional trial court or administrative proceedings
(d) a motion to enforce a plea agreement (attach copies of the plea agreement and the transcripts of the plea hearing and sentencing hearing).
. . .
(B) Action by the court. After giving notice to the parties, the court may summarily dispose of an appeal or a petition for review or enforcement.
(1) Memorandum briefs. The court may require parties to file memorandum briefs addressing specific dispositive issues.
(2) Copies. An original and
411 copies of a memorandum brief must be filed. Pro se litigants may file a memorandum brief on a form provided by the court.
10th Cir. R. 29
29.1 Amicus Briefs on Rehearing. The court will receive but not file proposed amicus briefs on rehearing. Filing will be considered shortly before the oral argument on rehearing en banc if granted or before the grant or denial of panel rehearing.
. . .
10th Cir. R. 31
31.5 Number of copies. A party (or an amicus) must file an original and
711 copies of briefs and supplemental authorities. Counsel may be required to furnish additional copies if needed.
. . .
46.1 Entry of appearance.
(A) Attorneys. Within 10 days after an appeal or other proceeding is filed, counsel for the parties must file written appearances in a form approved by the court (see Appendix A, Form 2). Other attorneys whose names subsequently appear on filed papers must also file written appearances. Attorneys who authorize their names to appear on filed papers have entered an appearance. After an appearance is entered, attorneys are responsible for the contents of all papers filed in their names. Attorneys who appear in a case in this court may not withdraw without a court order.
(B) Pro se. A party wishing to appear without counsel must notify the clerk in writing by filing an entry of appearance on a form approved by the court (see Appendix A, Form 3).
(C) Change of Address. Once an appearance has been entered, the clerk must be notified of any change of address.
CD) Certification of interested parties.
. . .
47.3 Judicial conference.
(A) Authorization. As
required permitted by 28 U.S.C. § 333, a judicial conference will may be convened every other year, at a time and place designated by the chief judge, or at another court-determined interval that the law permits. In alternate years, the circuit may hold a conference for judges only.
10TH CIR. FORM 2. ENTRY OF APPEARANCE AND CERTIFICATE OF INTERESTED PARTIES
[The Court proposes to increase the number of copies required from three to six copies.]
10TH CIR. FORM 3.
ENTRY OF APPEARANCE—PRO SE
[The Court proposes to increase the number of copies required from three to six copies.]
CRIMINAL JUSTICE ACT PLAN
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Pursuant to the Criminal Justice Act (Act), 18 U.S.C. § 3006A(b), the court adopts the following plan for furnishing representation in criminal cases on appeal. This amends the plan adopted by the Circuit Council on February 11, 1971 and which was last amended on January 1, 1996. When requested representation will be provided to every person who is entitled to representation under the Act.
I. Appointment of Counsel in the Tenth Circuit
Absent a change in financial conditions, any determination that a person is eligible for Criminal Justice Act counsel made in the district court shall continue on appeal. In its discretion, the court of appeals may appoint the attorney who represented the eligible person in the district court, the special appellate division of the Federal Public Defender’s office for the District of Colorado, another Federal Public Defender’s office from the circuit, or it may appoint a lawyer from the court’s Criminal Justice Act Panel.
Appointed counsel must continue to represent the appellant until relieved by the court of appeals. 10th Cir. R. 46.2.1. If filed in compliance with Tenth Circuit local rule 46.4(A), trial counsel’s request to be relieved from representation on appeal shall be given due consideration. While the court recognizes there may be benefits to maintaining continuity of counsel, it also recognizes that the skills necessary to proceed as appellate counsel may differ from those required for trial counsel. Substitution of counsel shall not reflect negatively in any way on the conduct of the lawyer involved. The court will require, however, that trial counsel perfect the appeal prior to seeking withdrawal.
II. Composition of Panel of Private Attorneys
A. Criminal Justice Act Panel
The Court will establish a panel of private attorneys (the CJA Panel) who are eligible and willing to accept appointments in cases where representation is required under 18 U.S.C. § 3006A. These attorneys, along with the lawyers from the Appellate Division of the Federal Public Defender’s Office for the District of Colorado, shall constitute the core group from which appointments shall be made. The Court shall approve private attorneys for membership on the CJA Panel after receiving recommendations from the Standing CJA Committee, established pursuant to Section III of this Plan.
The CJA Panel will not have a size limitation, but will include adequate attorney representation from each of the districts in the circuit. The Standing Committee will view applications for membership on the panel with an eye towards identifying qualified appellate counsel from each state in the Tenth Circuit.
To be eligible for service on the CJA Panel, lawyers must be members of the Tenth Circuit bar in good standing. They must certify that they have a working knowledge of the Federal Rules of Appellate Procedure and federal criminal law. Counsel on the list must be willing to accept at least one CJA appellate appointment each year.
D. Term of Service
There are no fixed terms for panel membership. Lawyers will remain on the panel until they resign or are removed in accordance with the procedure established in section II(G).
E. Application for Membership
Applications for membership on the panel will be available in the office of the Clerk of Court and on the circuit’s website at www.ca10.uscourts.gov. Completed applications must be submitted to the Clerk of Court for transmittal to the court’s Standing Committee on the Criminal Justice Act.
F. Maintenance of the List
The Clerk of Court shall maintain a public list in the clerk’s office of the members of the CJA Appellate Panel, including current street and email addresses and telephone numbers.
G. Removal from the Panel
The court is very appreciative of the time and commitment required to accept appellate appointments. Membership on the panel is not a property right, however, and the refusal to accept appointments on a consistent basis will lead the court to assume the lawyer has resigned from the panel. Counsel will be notified in writing of any change in status resulting from the failure to accept appointments. The Standing Committee may also recommend removal from the panel for other reasons. That recommendation must be in writing and will be forwarded to the court for consideration. If the court decides to accept the recommendation, counsel will be given notice of the proposed basis for removal and will be provided an opportunity to respond in writing. The court of appeals will make all final decisions regarding removal. If a panel attorney is removed, he or she will receive a letter of explanation from the court. Any attorney whose resignation is assumed because he or she has not accepted cases may file a request to return to active status. The request must include an explanation regarding the refusal to accept appointments. The Standing Committee will make a recommendation to the court on those types of requests. Attorneys removed for any other reason may file a renewed application no earlier than one year from the date of removal. In the application, counsel must note the earlier removal and explain why they believe they should be allowed to return to the panel.
III. Standing Committee On The Criminal Justice Act
A. Membership and Structure
The Chief Judge, or the Chief Judge’s delegate, shall appoint the Standing Committee. It shall be composed of two lawyers from Oklahoma, and one lawyer each from the remaining states in the circuit. Members may be private attorneys or lawyers from the various Federal Public Defenders’ offices. These attorneys shall serve staggered three year terms, and may serve two consecutive terms. In addition to these seven members, the Federal Public Defender for the Districts of Colorado and Wyoming shall be a permanent member of the Standing Committee. One of the other positions on the Committee must be filled with one of the other Federal Public Defenders from the circuit. The Chief Judge may also appoint a liaison to the Committee from the court’s legal staff. That person will not be a Committee member, but will be available to both the court and members for committee support and consultation.
The Standing Committee shall review the qualifications of applicants for the panel, conduct further inquiries as may be indicated, and shall make recommendations to the court of appeals for placement of lawyers on the panel. The Standing Committee shall also review the operation of the appellate panel on a periodic basis and shall make recommendations to the court regarding any necessary changes. This review may include investigation of complaints concerning panel attorneys. The Committee may make recommendations regarding removal of a lawyer from the list to the court of appeals. The Standing Committee’s recommendations to the court shall remain confidential. The CJA Panel list, however, will be public information.
IV. Change In Financial Conditions
If a party becomes financially unable to employ counsel on appeal, a motion seeking a finding that the party is eligible for the appointment of counsel must be made in district court. See 18 U.S.C. § 3006A. Because the district court must make factual findings regarding the defendant’s financial eligibility, appropriate forms, particularly a CJA 20 form, should be filed in that court first. Upon issuance of an order finding the person financially eligible, counsel may file a motion in this court for appointment of counsel under the statute. The court may, at any time, examine or re-examine the financial status of the defendant. If a court finds that the defendant is financially able to obtain counsel or make partial payments for representation, the court may deny or terminate an appointment pursuant to subsection (c) of the Act or require partial payment to be made pursuant to subsection (f) of the Act.
V. Death Penalty Cases
Pursuant to the Guidelines for Administration of the Criminal Justice Act, the court may, in an appropriate death penalty case, appoint and compensate under the Act an attorney or attorneys from a state or local public defender organization or from a legal aid agency or other non-profit organization.
VI. Petition For Writ of Certiorari
If the judgment of this court is adverse to the client, counsel must inform the client of the right to petition the Supreme Court of the United States for a writ of certiorari. Counsel must file a petition for a writ of certiorari if If the client requests that such a review be sought, and, in counsel may file a petition for a writ of certiorari when, in counsel’s considered judgment, there are grounds for seeking Supreme Court review that are not frivolous and are consistent with the standards for filing a petition contained in the Rules of the Supreme Court and applicable case law. If, on the other hand, the client requests that counsel file a petition for a writ of certiorari and, in counsel’s considered judgment, there are no such grounds for seeking Supreme Court review that are non-frivolous and for filing a petition contained in the Rules of the Supreme Court and applicable case law, counsel should promptly so advise the client and submit to this court a written motion for leave to withdraw from the representation with this court promptly after the entry of judgment. If this court grants counsel’s motion and terminates counsel’s appointment, counsel must so advise the client in writing as soon as possible. The writing shall also advise the client of his or her right to file a pro se petition for a writ of certiorari.
VII. QUALITY OF REPRESENTATION
Attorneys appointed pursuant to any provisions of the Act must conform to the highest standards of professional conduct, including, but not limited to, the provisions of the American Bar Association’s Code of Professional Responsibility.
All claims for compensation and expenses must be submitted to the clerk, on the voucher enclosed with the appointment, at the conclusion of the representation. All claims must be supported by appropriate documentation. In each case, the court will fix the compensation to be paid the attorney as provided in the Act. Counsel appointed in direct criminal appeals and non-death penalty § 2254 and § 2255 matters should review the Court’s general Advice To Counsel letter for detailed information and guidelines regarding compensation issues. Counsel appointed in death penalty matters should review the court’s separate Death Penalty Advice To Counsel letter. Copies of those letters may be obtained from the Clerk of Court. See www.ca10.uscourts. gov/cja.cfm.
Although the Act provides for limited compensation, the court recognizes that the compensation afforded often does not reflect the true value of the services rendered. Consequently, it is the court’s policy not to cut or reduce claims which are reasonable and necessary. If the court determines a claim must be cut it will provide the attorney notice and an opportunity to cure the defect.
B. Other Payments
Except as authorized or directed by the court, no appointed attorney and no person or organization authorized by the court to furnish representation under the Act may request or accept any payment or promise of payment for representation of a defendant.
IX. Application of Guidelines
Appointment of counsel under the Act will be governed generally by the Guidelines for Administration of the Criminal Justice Act. VII Guide to Judiciary Policies and Procedures, Appointment of Counsel in Criminal Cases, Section A.
PLAN FOR APPOINTMENT OF COUNSEL
IN SPECIAL CIVIL APPEALS
To provide representation in special cases for persons who are financially unable to obtain the services of counsel.
Under this plan, the court may appoint counsel to represent a party or parties to a civil matter pending before the court when:
1. the person is financially unable to obtain the services of counsel;
2. the person is not entitled to appointed counsel under the provisions of the Criminal Justice Act or other source of legal assistance;
3. the person has requested appointment of counsel;
4 3. the litigation presents complex and significant legal issues, the outcome of which may have wide impact;
5 4. it is manifestly clear that the services of counsel are necessary for the effective presentation of the issues to the court; and
4 5. the interests of justice require that counsel be assigned to assist the litigant who would otherwise be compelled to proceed pro se.
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PLAN FOR ATTORNEY
Section 6. Initiation of Disciplinary Proceedings.
6.1 Upon the receipt of a copy of a judgment, order, or other court document demonstrating that an attorney has been convicted of a serious crime, has been either suspended or disbarred or reprimanded by another court, or has resigned from the bar of another court during the pendency of a misconduct investigation, the clerk
with the approval of the chief judge or the chief judge’s designee will shall issue an order directing the attorney to show cause why the court should not impose upon the attorney the discipline described in Section 3. With the order to show cause, the clerk also may send a copy of the judgment of conviction or disciplinary judgment, order, or other court document indicating the form of disciplinary action.
6.2 When misconduct or allegations of misconduct concerning the appellate process which, if substantiated, would warrant discipline on the part of an attorney comes to the attention of the clerk or a judge , whether by complaint, grievance, or otherwise,
the matter will be referred to the disciplinary panel for investigation and formal disciplinary appropriate. If the disciplinary panel determines that cause may exist for disciplinary action, the panel will direct the clerk will shall issue an order to show cause why discipline should not be imposed by this court. The order will set forth the alleged conduct, which is the subject of the proceeding and the reason the conduct may justify such discipline. If the disciplinary panel determines that cause does not exist for disciplinary action, the proceeding will be dismissed with appropriate notice.
6.3 All orders to show cause under this section
will require the attorney to respond within twenty (20) days. and the clerk will furnish a copy of this plan to the attorney. In the response to the order to show cause, the attorney must include a declaration of the other bars to which the attorney is admitted. The clerk shall furnish a copy of this plan to the attorney.
Section 7. Uncontested Proceedings.
7.1 If an attorney fails to timely respond to an order to show cause the clerk will notify the chief judge or the chief judge’s designee. The judge
panel may then direct entry of an order imposing discipline as indicated.
7.2 Any attorney who is the subject of an investigation by this court into allegations of misconduct may consent to disbarment by filing with the clerk an affidavit stating that the attorney desires to consent to disbarment. Resignation from the bar of this court while a disciplinary proceeding is pending—after the clerk has issued an order to show cause—is consent to disbarment.
United States Bankruptcy Court
For the District of Colorado
In the Matter of the Implementation of Mandatory Electronic Filing Procedures
For Regular Filers
Second Amended General Procedure Order Number 2001-8
WHEREAS the Federal Rules of Procedure (Civil Rule 5(e), Bankruptcy Rules 5005(a)(2), 7005, 8008, 9011 and 9029) provide that a court may establish practices and procedures for the filing, signing and verification of documents by electronic means; and
WHEREAS, recommendations regarding administrative policies and procedures for filing, signing and verifying documents by electronic means have been tendered to the court by various focus groups consisting of judges, attorneys, practitioners, court personnel, and experts in related subject matter areas; and
WHEREAS, proposed Administrative Procedures for Electronic Case Files (ECF Procedures) based upon those focus group recommendations have been reviewed by the court; and
WHEREAS, the ECF Procedures are consistent with and further the responsibility of the clerk for the control of the court’s docket pursuant to Fed.R.Bankr.P 5003 and 5005, including safeguarding the integrity of the court’s docket, pursuant to the provisions of the Case Management/Electronic Case Files (CM/ECF) system of the United States Courts; and
WHEREAS, the ECF Procedures provide a means for the signature on documents through a secure mechanism for the creation and issuance of individual passwords; and
WHEREAS, the ECF Procedures provide adequate means for the filing, review and retrieval of documents by parties who are not able to access CM/ECF from a remote location; it is therefore
1. In lieu of filing petitions, pleadings and other papers conventionally in paper format as prescribed in Local Bankruptcy Rule 904 and other rules, attorneys who file, on average, one or more documents per week and other Electronic Filers authorized by the Court shall file documents in an electronic format. Attorneys who file, on average, less than one document per week may, at their discretion, file documents in an electronic format. Except as otherwise provided in Paragraph II.A.7. of the Amended Administrative Procedures for Electronic Case Files, all documents filed with the Court, either electronically or via paper format, shall be converted to and stored as electronic documents. The electronic files, consisting of the images of documents filed in cases or proceedings and documents filed by electronic means, shall constitute the official record of the court together with any other records kept by the clerk. The Court may, in any matter at any time, request that a copy of a document be submitted to the judge in paper format.
2. The ECF Procedures attached hereto as Exhibit A (Amended Administrative Procedures for Electronic Case Files) are approved and shall apply to all attorneys who file, on average, one or more documents per week. To the extent feasible, the ECF Procedures shall also apply to all documents filed in this Court, whether such documents are filed electronically or by way of paper format.
3. The use of an attorney’s password to file a document electronically shall constitute the original signature of that attorney for purposes of Fed.R.Bankr.P. 9011.
4. Each attorney, law firm or other person that obtains a password for electronic filing shall be responsible for its security and use. No attorney, law firm or other person shall knowingly permit or cause to permit an Electronic Filer’s password to be utilized by anyone other than an authorized member, employee or agent of the Electronic Filer’s law firm.
5. The request for and receipt of a CM/ECF password from the court shall constitute a request for electronic service pursuant to Fed.R.Bankr.P. 9036 of all notices, orders, decrees and judgments issued by the court, and except as otherwise provided in the ECF Procedures, a waiver of the right to receive notice and service from the court by mail. Electronic Filers continue to receive copies of notices, orders, decrees and judgments by regular postal mail in addition to electronic notification.
6. The electronic filing of a document in accordance with the ECF Procedures shall constitute entry of that document on the docket kept by the clerk pursuant to Fed.R.Bankr.P. 5003.
7. All orders, decrees, judgments and proceedings of the court shall, in accordance with the ECF Procedures, be entered on the docket kept pursuant to Fed.R.Bankr.P. 5003 and for the purposes of Fed.R.Bankr.P. 9021.
8. To the extent that this order or the ECF Procedures is inconsistent with the Local Bankruptcy Rules and Forms for the District of Colorado dated December 1, 1999, this order and the ECF Procedures shall have precedence.
9. This order or the ECF Procedures may be amended or superseded by amendments to the Local Bankruptcy Rules and Forms for the District of Colorado as the court deems necessary.
10. This order shall become effective on September 1, 2005, and shall apply to all cases and proceedings pending on or filed after that date.
Dated: July 25, 2005.
By the Court:
Sidney B. Brooks, Chief Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Howard R. Tallman, Judge
Michael E. Romero, Judge
Department of the Treasury
Internal Revenue Service
Small Business/Self-Employed Division
Letter from Director—Advisory, Insolvency & Quality
July 27, 2005
This letter is being sent as a follow up to our previous message regarding the Insolvency centralization. The Insolvency operation is proceeding with plans to consolidate the clerical and paraprofessional work to one centralized location - the Philadelphia campus.
Effective August 8, 2005, Chapter 7 No Asset cases and Chapter 13 post-confirmation cases for the states of Colorado, Montana, Wyoming and the Riverside and Santa Anna Divisions of the Central District and the Southern District of California will be assigned to Insolvency employees in the Centralized Insolvency Operation (CIO) at the Philadelphia campus. All mail and phone communications pertaining to those cases should be directed to the Philadelphia campus effective on that date.
Insolvency employees at the campus will be responsible for taking all actions on cases that are assigned to them, including handling incoming phone calls and processing Insolvency mail directed to the campus. A toll free call center has been established for Insolvency related calls. The toll free number is 1-800-913-9358. The fax number for the CIO is 215-516-2015. The campus staff will consist of day and swing shifts to enable customers to speak with assisters during working hours in all time zones.
There will be two mailing addresses for cases assigned to the campus.
• All payments for Chapter 7, Chapter 9, Chapter 12 and Chapter 13 cases should be sent to P.O. Box 21125, Philadelphia, PA 19114.
• All other correspondence pertaining to the cases listed above should be sent to P.O. Box 21126, Philadelphia, PA 19114.
• Payments for Chapter 11 cases will continue to be sent to the local offices.
• Insolvency will notify the Clerk of the Court to change our official address on their matrix.
Eventually, the campus will also be responsible for initial processing of all new bankruptcy cases and closing actions on cases that have been discharged or dismissed. Insolvency employees in local offices and the campus are continuing to work together to ensure the current levels of customer service are maintained.
A significant amount of the types of work currently performed by the professional staff in Insolvency local offices will remain assigned to Insolvency field employees including Chapter 9, 11 and 12 cases as well as Chapter 13 pre-confirmation cases and complex Chapter 7 cases. In most instances, interaction with Insolvency field employees will remain unchanged.
If you have any questions or concerns, please contact Chris Palin at 949-389-4165.
Thomas D. Mathews, Director
Advisory, Insolvency & Quality
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