Determination of whether to enter stay of execution. When a person under a sentence of death files a proper postconviction petition for habeas corpus, a district court or the Supreme Court on a subsequent appeal shall enter a stay of execution if the court finds a stay necessary for a proper consideration of the claims for relief. In making this determination, the court shall consider whether:
1. The petition is the first effort by the petitioner to raise constitutional claims for relief after a direct appeal from his conviction and the petition raises claims other than those which could have been raised at trial or on direct appeal.
2. The petition is timely filed and jurisdictionally appropriate and does not set forth conclusory claims only.
3. If the petition is not the first petition for postconviction relief, it raises constitutional claims which are not procedurally barred by laches, the law of the case, the doctrines of abuse of the writ or successive petition or any other procedural default.
4. If the petition is a second or successive petition, it presents substantial grounds upon which relief might be granted and valid justification for the claims not having been presented in a prior proceeding.
5. The petition asserts claims based upon specified facts or law which, if true, would entitle the petitioner to relief.
6. The court cannot decide legal claims which are properly raised or expeditiously hold an evidentiary hearing on factual claims which are properly raised before the execution of sentence.
Last modified: February 25, 2006