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Leonard v. Davis

United States District Court, E.D. California

April 26, 2017

RON DAVIS, Warden, Respondent. Type of Record No. of Pages



         The Selection Board has recommended appointment of counsel for petitioner. Good cause appearing, IT IS HEREBY ORDERED as follows:

         1. The Federal Defender, 801 I St., Third Floor, Sacramento, CA 95814, and John R. Mills, 836 Harrison St., San Francisco, CA 94107, are appointed to represent petitioner pursuant to 18 U.S.C § 3599. See L.R. 191(c).

         2. On May 23, 2017, at 10:00 a.m., the undersigned will hold a case management conference. Petitioner's counsel shall appear in person and shall be prepared to discuss the due date for filing the federal habeas petition. Respondent's counsel shall be prepared to discuss setting a date for lodging the state court record as described in Local Rule 191(h)(1), as well as a date for filing the answer or other responsive pleading.

         3. At the conclusion of the case management conference, respondent's counsel will be excused and the conference will continue ex parte with counsel for petitioner present to discuss budgeting procedures. Appendix A to this order is a description of those procedures. Petitioner's counsel shall bring to the budgeting conference a completed Case Evaluation Form and completed Rate Justification Worksheets for each attorney. The form and worksheet are attached hereto as Appendices B and C.

         4. The Clerk of the Court is directed to file under seal the Selection Board's April 25, 2017 letter to the undersigned.

         5. In addition to serving this order upon counsel, the Clerk is directed to serve it upon Kurt Heiser, CJA Administrator, Office of the Federal Defender for the Eastern District of California.

         APPENDIX A

         Counsel appointed pursuant to 18 U.S.C. § 3599 and Local Rule 191 to represent a condemned prisoner seeking relief under 28 U.S.C. § 2254 will be required to propose budgets for their time and expenses anticipated during each phase of the proceedings. Set out below are the procedures for proposing budgets and submitting vouchers for reimbursement.


         1. Under 18 U.S.C. § 3599(f), ex parte consideration of funding applications requires petitioner to make a showing of the need for confidentiality. Since budget applications require disclosure of matters protected by the attorney-client or work-product privileges, the need for confidentiality is inherent in the budgeting process. See Fed.R.Civ.P. 26(b)(1) and (3). Accordingly, budget forms and supporting documentation will be filed under seal and not served on counsel for respondent. Counsel shall submit budget-related filings by e-mailing them to the court's “Approved Sealed” e-mail address, The provisions of Local Rule 141 regarding the process for filing documents under seal are suspended with respect to budgeting in capital habeas cases. Any ex parte court proceeding regarding funding will be reported and maintained under seal.

         2. A proposed budget should reflect the total attorney time required, including time for budget preparation, as well as the time for paralegals, investigators and experts, if applicable, and any anticipated travel or other expenses. Voucher preparation, however, is considered part of overhead and not reimbursable. In preparing a budget, counsel shall refer to the Ninth Circuit Judicial Council's costs policies for capital habeas cases. Current cost policies are available on this court's website at, under Forms, CJA Capital Habeas Forms.

         3. In support of the proposed budget for each phase, counsel shall file informative declaration(s) which explain and/or justify the hours, tasks, and expenses sought. Counsel shall include any information that will assist the court in determining the reasonableness of the budget request. If petitioner is represented by two attorneys, counsel shall explain how the work will be divided between them. The supporting documentation should be captioned and filed under seal in a complete application, including explanatory remarks, declarations, and exhibits. All supporting declarations must be properly subscribed pursuant to 28 U.S.C. § 1746.

         4. Counsel are expected to utilize all reasonable means to minimize costs, to tier staff responsibilities to lower-rate personnel whenever practical, and to utilize paralegals and law clerks to complete tasks for which attorney expertise is not required.

         5. Requests in the budget for investigative and/or expert assistance should be detailed and present the factual basis to support the request. Prior to approval, the court must find that the requested expert or investigative assistance is “reasonably necessary for the representation of the defendant.” 18 U.S.C. § 3599(f). Information which should be included in the supporting declaration to assist the court includes, but is not limited to, a specification of: (1) the evidence sought to be uncovered; (2) facts suggesting that such investigation, expert service, or other assistance is warranted; (3) whether the evidence existed at the time of the state trial; (4) whether similar assistance was provided or requested in state court; (5) the purpose of the evidence on federal habeas, that is, the connection of the evidence sought to be uncovered to a prospective claim or contention that will be raised in the federal petition; (6) the name of the expert or investigator; and (7) the proposed billing rate and the reasonableness of the rate. Presumptive rates contained in the Ninth Circuit Capital Habeas Costs Policy will apply to all experts, investigators, and paralegals.

         6. The approved budget for each phase will be one sum for attorney time and one sum for expenses. In addition, each expert and investigator's time will be a separate budget figure. Counsel generally will not be allowed to exceed the authorized budget during any phase without first seeking prior approval, or amendment to the budget, and explaining why additional funds are required. Failing to obtain approval to amend the budget could result in the denial of unauthorized or excessive expenditures.

         7. The budget for each phase will be closed out when the work for that phase is completed. Hours and expenditures will not be carried over to the next phase. Rather, a new budget for each succeeding phase must be proposed by counsel and approved by the court. As the case progresses through each case management phase, counsel are responsible for ensuring that the case is litigated within the established budget.

         8. Any budget approved by the district court must also be approved by the Judicial Council of the Ninth Circuit. Counsel are authorized to proceed based upon the initial budget approved by the district court and will be contacted should any further clarification, information, or action be requested by the Judicial Council.


         1. Work inherently necessary to practice and remain current in the area of federal habeas law, which is not directly attributable to a particular case, including the review and analysis of new cases, is considered general overhead, and is not reimbursable.

         2. The court will not approve compensation for administrative services, such as secretarial services, preparation of payment vouchers, or communications with court staff.

         3. Unless a contrary need is demonstrated, the court will compensate only one attorney for physical attendance at court hearings. Upon sufficient justification, the court may authorize compensation for up to two members of counsel's legal staff at a time for visits to petitioner and witness interviews. Counsel who reside outside the Sacramento area will typically make court appearances by telephone unless they have requested, and been approved, for travel to Sacramento.

         4. The court will not approve compensation for work performed on appellate proceedings (whether from interlocutory orders or final judgments). Counsel shall seek compensation for work performed at the appellate level from the Court of Appeals after having obtained an appointment from that court.

         5. The court will compensate counsel for professional time spent in airport (or other common carrier) terminals and as a passenger on common carriers only when counsel is performing substantive tasks on the case that can be billed to a professional time category. Terminal processing time as well as driving time will be compensated at the maximum rate of $100 per hour. In light of the public service nature of CJA appointments together with the fact that public rather than private funds are being utilized, the travel reimbursement set forth in this paragraph will be applied.


         1. The court will authorize payment for miscellaneous expenses reasonably incurred and subject to national and district policies and procedures. Copies of all bills and receipts must be submitted for reimbursement approval.

         2. Mileage for case-related travel by privately owned (not rented) automobile may be claimed at the rate in effect for federal judicial employees, available from the CJA Administrator. Case-related parking fees and bridge/road tolls also are reimbursable. Counsel should assess whether case-related travel would be more cost effective by privately owned automobile or rented automobile.

         3. Ground transportation other than by privately owned automobile will be reimbursed on an actual expense basis. Counsel should make every effort to obtain the lowest possible fares or rates.

         4. Though travel expenses may be authorized in the budget, each time a member of petitioner's litigation team intends to travel by air, a Travel Request and Authorization Form must be authorized by the CJA Administrator and approved by the court, unless counsel can procure more economical travel arrangements on his or her own. Approval of a travel authorization form is the procedure by which government rates for travel are obtained; the form does not function as approval of travel expenses in excess of the budget. Should the authorized budget be insufficient for the anticipated ...

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