402

State Procedures for Appointment of Competent Counsel 

in Post-Conviction Review of Capital Sentences

Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effective Death Penalty Act of 1996, and now codified as chapter 154 of title 28, U.S. Code, 

may be construed to permit the Attorney General to exercise his delegated authority to 

define the term “competent” within reasonable bounds and independent of the counsel 

competency standards a state itself establishes, and to apply that definition in determining whether to certify that a state is eligible for special procedures in federal habeas corpus proceedings involving review of state capital convictions.

If the Attorney General chooses to establish a federal minimum standard of counsel 

competency that state mechanisms must meet in order to qualify for certification, he 

should do so in a manner that still leaves the states some significant discretion in establishing and applying their own counsel competency standards.

These statutory provisions may reasonably be construed to permit the Attorney General to 

evaluate a state’s appointment mechanism—including the level of attorney compensation—to assess whether it is adequate for purposes of ensuring that the state mechanism will result in the appointment of competent counsel.

December 16, 2009

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 

No. 104-132, § 107(a), 110 Stat. 1214, 1221 (1996), and now codified as 

chapter 154 of title 28, U.S. Code, make expedited and other special 

procedures available to state respondents in federal habeas corpus proceedings involving review of state capital convictions. Amendments to 

chapter 154 enacted in 2006 condition the availability of these procedures on the Attorney General’s certification that the state in question 

has met certain requirements. See USA PATRIOT Improvement and 

Reauthorization Act of 2005 (“PATRIOT Improvement Act”), Pub. L. 

No. 109-177, § 507(c)(1), 120 Stat. 192, 250 (2006). Specifically, a state 

is entitled to the special procedures only if the Attorney General determines, inter alia, that the state has established “a mechanism for the 

appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state postconviction proceedings brought 

by indigent [capital] prisoners,” and that the state “provides standards of 

competency for the appointment of counsel in [such] proceedings.” 28 
State Procedures for Appointment of Competent Counsel

403

U.S.C. § 2265(a)(1)(A), (C) (2006); see also id. § 2261(b). Chapter 154 

also authorizes the Attorney General to “promulgate regulations to implement the certification procedure.” Id. § 2265(b).

Attorney General Mukasey published a final rule implementing this 

certification procedure on December 11, 2008. Certification Process for 

State Capital Counsel Systems, 73 Fed. Reg. 75,327 (Dec. 11, 2008) 

(codified at 28 C.F.R. § 26.22 (2009)) (“2008 final rule”). That final rule 

afforded the Attorney General very limited discretion in exercising his 

certification responsibilities. In particular, the final rule required the 

Attorney General to apply the counsel competency standards established 

by the state itself in determining whether a state has established “a mechanism for the appointment, compensation, and payment of reasonable 

litigation expenses of competent counsel,” 28 U.S.C. § 2265(a)(1)(A) 

(emphasis added). See 73 Fed. Reg. at 75,330–32. In accord with this 

approach, the examples that the final rule offered to illustrate its application gave no indication that the Attorney General would have the authority to evaluate whether a state appointment mechanism could be expected 

to ensure the appointment of counsel who qualify as competent under a 

federal standard. Id. at 75,339 (codified at 28 C.F.R. § 26.22(d)) (setting 

forth examples). Indeed, the promulgated final rule expressly omitted 

the adjective “competent” found in the statutory requirement that the 

state mechanism provide for the appointment of “competent counsel.” 

28 C.F.R. § 26.22(a), 73 Fed. Reg. at 75,338. Similarly, the examples 

offered in the rule regarding the compensation provided by the proposed 

state mechanism indicated that so long as a state did not require appointed 

counsel to act on a volunteer basis, the Attorney General would have no 

authority to determine whether a state’s chosen compensation level would 

ensure the appointment of competent counsel. 28 C.F.R. § 26.22(b) (setting forth examples).

A federal district court enjoined the rule from taking effect until the 

Department of Justice provided an additional comment period of at least 

thirty days and published a response to any comments received during 

that period. Habeas Corpus Res. Ctr. v. Dep’t of Justice, No. C 08-2649 

CW, 2009 WL 185423, at *10 (N.D. Cal. Jan. 20) (order granting motion 

for preliminary injunction). Acting Attorney General Filip thereafter 

instituted a new comment period that ended on April 6, 2009. 74 Fed. 

Reg. 6,131 (Feb. 5, 2009). Many of the comments received during this 

period took issue with the final rule, with a number of the comments 
33 Op. O.L.C. 402 (2009)

404

contending that the rule unduly cabined the Attorney General’s discretion 

in exercising his certification authority.

You have asked our Office whether the relevant statutory provisions 

require you to follow the approach taken in the 2008 final rule. After 

carefully considering this question, we conclude that they do not. In our 

view, these provisions may be construed to permit you to exercise your 

delegated authority to define the term “competent” within reasonable 

bounds and independent of the competency standards a state itself establishes, and to apply that definition in making your certification determinations. If you choose to establish a federal minimum standard of counsel 

competency that state mechanisms must meet in order to qualify for 

certification, however, you should do so in a manner that still leaves the 

states some significant discretion in establishing and applying their own 

counsel competency standards. We further conclude that the statutory 

provisions in question may reasonably be construed to permit you to 

evaluate a state’s appointment mechanism—including the level of attorney compensation—to assess whether it is adequate for purposes of ensuring that the state mechanism will result in the appointment of competent 

counsel.

I.

As originally enacted in 1996 (see AEDPA, Pub. L. No. 104-132, 

§ 107(a)), chapter 154 of title 28 entitled a state to the advantages of 

expedited federal habeas procedures in capital cases1 if it “establishe[d] 

by statute, rule of its court of last resort, or by another agency authorized 

by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners whose capital 

convictions and sentences have been upheld on direct appeal to the court 

of last resort in the State or have otherwise become final for State law 

 1 Such advantages included, for example, a shorter statute of limitations for deathsentenced inmates filing their federal habeas petitions (six months instead of one year), 

strict deadlines for federal courts ruling on such petitions, limitations on stays of execution, and tightened procedural default rules. See 28 U.S.C. §§ 2262–2264, 2266 (2000); 

Spears v. Stewart, 283 F.3d 992, 1009 (9th Cir. 2002). When Congress amended chapter 

154 in 2006, see infra pp. 405–406, it changed these advantages slightly in ways that are 

not relevant here.
State Procedures for Appointment of Competent Counsel

405

purposes.” 28 U.S.C. § 2261(b) (2000). Chapter 154 further provided 

that the state “rule of court or statute must provide standards of competency for the appointment of such counsel.” Id.

For almost a decade thereafter, federal courts, in the context of adjudicating federal habeas petitions brought by indigent state prisoners who 

had been sentenced to death, regularly engaged in an independent review 

of whether the state respondent had satisfied the competent counsel 

appointment preconditions set forth in chapter 154. See, e.g., infra notes 

5 & 8.

In 2006, however, Congress enacted section 507(c)(1) of the PATRIOT 

Improvement Act. Pursuant to these amendments, a federal court entertaining a habeas petition by a state capital prisoner is required to implement the expedited procedures “if the Attorney General of the United 

States certifies that [the] State has established a mechanism for providing 

counsel in postconviction proceedings as provided in section 2265,” and if 

“counsel was appointed pursuant to that mechanism, petitioner validly 

waived counsel, petitioner retained counsel, or petitioner was found not to 

be indigent.” 28 U.S.C. § 2261(b) (2006).

The Attorney General certification procedure is set forth in 28 U.S.C. 

§ 2265(a)(1). That paragraph provides that, upon request “by an appropriate State official,” the Attorney General “shall determine” the following:

(A) whether the State has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings 

brought by indigent prisoners who have been sentenced to death;

(B) the date on which the mechanism described in subparagraph 

(A) was established; and

(C) whether the State provides standards of competency for the 

appointment of counsel in proceedings described in subparagraph 

(A).

These substantive requirements for Attorney General certification are, for 

all purposes relevant here, identical to the requirements for entitlement to 

expedited habeas procedures codified in the pre-2006 version of the 

statute. See 28 U.S.C. § 2261(b) (2000). The amended version of 28 

U.S.C. § 2265(a)(3) (2006), unlike the pre-2006 law, further specifies that 

“[t]here are no requirements for certification or for application of [chapter 
33 Op. O.L.C. 402 (2009)

406

154] other than those expressly stated in [chapter 154].” And 28 U.S.C. 

§ 2265(b) authorizes the Attorney General to prescribe regulations to 

implement the certification process.

Underscoring the changed role of the federal habeas courts in the new 

chapter 154 process, 28 U.S.C. § 2265(c) provides that the Attorney 

General’s certification shall be reviewed by the United States Court of 

Appeals for the District of Columbia Circuit. See 152 Cong. Rec. 2441 

(Mar. 2, 2006) (statement of Sen. Kyl) (observing that review of certification is vested in the U.S. Court of Appeals for the District of Columbia Circuit, “which does not hear habeas petitions”).

II.

A.

The preamble to the 2008 final rule makes clear that the rule was intended to constrain the Attorney General’s certification authority quite 

significantly and that such a constraint was thought to be statutorily 

required. The preamble expressly rejected the suggestion in some of the 

comments received during the comment period that the Attorney General 

had the authority to give independent substantive content to the statutory 

requirements for certification to the extent those requirements were ambiguous. The preamble explained that such comments “reflected misunderstandings of the nature of the functions that chapter 154 requires the 

Attorney General to perform, and particularly, of the limited legal discretion that the Attorney General possesses under the statutory provisions.” 

73 Fed. Reg. at 75,327. Especially significant for present purposes, the 

preamble stated with respect to the term “competent counsel”:

The commenters are correct that the text of chapter 154 needs to be 

supplemented in defining competency standards for postconviction 

capital counsel, but mistaken as to who must effect that supplementation. Responsibility to set competency standards for postconviction 

capital counsel is assigned to the states that seek certification.

Id. at 75,331 (emphasis added).2

 2 One of the examples that the rule offered would seem to be in some tension with this 

basic approach. The rule indicated that, in setting competency standards, a state could not 
State Procedures for Appointment of Competent Counsel

407

The preamble defended this conclusion primarily by referring to the 

relationship between section 2265(a)(1)(A) and section 2265(a)(1)(C). 

The former provision requires the Attorney General to determine whether 

a state has “established a mechanism for the appointment, compensation, 

and payment of reasonable litigation expenses of competent counsel in 

State postconviction proceedings brought by indigent prisoners who have 

been sentenced to death.” The latter provision requires the Attorney 

General to determine “whether the State provides standards of competency for the appointment of counsel in proceedings described in subparagraph (A).” The preamble to the 2008 final rule reasoned that “[i]n context, the phrase ‘competent counsel’ in section 2265(a)(1)(A) must be 

understood as a reference to the standards of counsel competency that the 

states are required to adopt by section 2265(a)(1)(C).” 73 Fed. Reg. at 

75,331 (emphasis added). The preamble further explained that “[i]f 

the reference to ‘competent counsel’ in section 2265(a)(1)(A) were a 

directive to the Attorney General to set independently the counsel competency standards that states must meet for chapter 154 certification, then 

the section 2265(a)(1)(C) requirement that the states provide such standards would be superfluous, and section 2265 would be internally inconsistent as to the assignment of responsibility for setting counsel competency standards.” Id.

In our view, however, these provisions do not compel the preamble’s 

conclusion. There is no express direction in the text of section 2265 that 

the Attorney General perform his certification function under subsection 

(a)(1)(A) solely with reference to the standards of competency that a state 

provides pursuant to subsection (a)(1)(C). The text of subsection (a)(1) 

instead may be read to require the Attorney General to make three distinct 

and independent determinations—those enumerated in subparagraphs 

(A)–(C)—each without reference to the other.

 

simply allow “any attorney licensed by the state bar to practice law” to represent indigent 

capital defendants in post-conviction proceedings. 73 Fed. Reg. at 75,339 (codified at 28 

C.F.R. § 26.22(d) (example 4)). The Rule did not explain why this “bar-licensed” standard would not suffice, nor why it might be different in kind from other minimal standards 

that a state could establish and still qualify for certification.
33 Op. O.L.C. 402 (2009)

408

1.

In reaching this conclusion, we begin with the fact that nothing in the 

text of subsection (a)(1)(A), standing alone, compels the conclusion that 

the Attorney General must make his determination with reference to a 

state’s standards of counsel competency. Indeed, subsection (a)(1)(A) 

neither mentions such state-promulgated standards nor references subsection (a)(1)(C). The absence of such an explicit direction or reference is 

significant. In general, it is fair to presume that Congress does not intend 

for state officials to be solely responsible for construing and giving content to a federal statutory term—such as “competent” in subsection 

(a)(1)(A)—that is ambiguous and not otherwise defined. As the Supreme 

Court has made clear, there is a “general assumption” that “in the absence 

of a plain indication to the contrary . . . Congress when it enacts a statute 

is not making the application of the federal act dependent on state law.” 

Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989) 

(internal quotation marks omitted).

That general assumption is especially warranted here because the statutory framework at issue appears to have specifically charged a federal

official with interpretive authority. Congress assigned the Attorney General—not the states themselves—the function of certifying state mechanisms, a task requiring that the Attorney General determine whether the 

state’s proffered mechanism qualifies as one that is “for the appointment, 

compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent 

prisoners who have been sentenced to death.” 28 U.S.C. § 2265(a)(1)(A) 

(emphasis added). We presume that the Attorney General has discretion to 

resolve statutory ambiguities contained in the statutory scheme he is 

charged with administering. The term “competent” is plainly a generality 

open to varying constructions. It is thus fair to conclude from the text of 

subsection (a)(1)(A) standing alone that, by assigning to the Attorney 

General the obligation to determine whether a state has established a 

qualifying mechanism for appointing competent counsel, Congress intended the Attorney General to resolve the ambiguity and to provide a 

reasonable interpretation of the word “competent.” See Nat’l Cable & 

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)

(“ambiguities in statutes within an agency’s jurisdiction to administer are 
State Procedures for Appointment of Competent Counsel

409

delegations of authority to the agency to fill the statutory gap in reasonable fashion”).3

Although subsection (a)(1)(A) does not refer to the state standards for 

competency described in subsection (a)(1)(C), it is true that subsection 

(a)(1)(C) does expressly refer to subsection (a)(1)(A). In our view, however, that cross-reference does not suffice to compel the approach taken in 

the 2008 final rule. In fact, if anything, the cross-reference points in the 

opposite direction. The reference to subsection (a)(1)(A) in subsection 

(a)(1)(C) is not an express directive to the Attorney General to conform 

his judgments under subsection (a)(1)(A) to the competency standards 

that subsection (a)(1)(C) requires him to determine that a state has established. Rather, the reference to subsection (a)(1)(A) is more naturally read 

as a shorthand means of identifying the kind of “proceedings” for which 

states must provide standards of competency for the appointment of 

counsel. Indeed, the fact that Congress chose to refer back to subsection 

(a)(1)(A) in subsection (a)(1)(C) but, in doing so, did not expressly direct 

the Attorney General to conform his determination under subsection 

(a)(1)(A) to the standards that a state must provide under subsection 

(a)(1)(C), is itself significant. It shows that although Congress included 

statutory language cross-referencing provisions of section 2265(a)(1) in 

another context, it chose not to expressly constrain the Attorney General’s 

subsection (a)(1)(A) determination by reference to subsection (a)(1)(C).

Similarly, the amended law unambiguously requires the federal habeas 

courts to give effect to the Attorney General’s certification determinations. The courts’ limited role in this regard is demonstrated by section 

2261(b)(1), which expressly requires courts to accept the Attorney General’s certification under section 2265(a)(1)(A) in determining whether 

the expedited procedures apply. By contrast, the 2006 amendments do not 

contain express language similarly requiring the Attorney General to 

accept the state’s appointment mechanism or competency standards in 

making his certification determination. Rather, section 2265(a)(1)(A) 

provides only that “[t]he Attorney General shall determine . . . whether 

the state has established” the required mechanism. It makes no refer-

 3 The fact that the Attorney General’s certification decisions are subject to de novo 

review by the United States Court of Appeals for the District of Columbia Circuit is not 

inconsistent with Congress’s decision to confer interpretive authority on the Attorney 

General. See United States v. Haggar Apparel Co., 526 U.S. 380, 391 (1999).
33 Op. O.L.C. 402 (2009)

410

ence—either in the provision itself or by cross-reference—to state standards that would cabin this authority.

Although the preamble to the 2008 final rule did not contend that Congress expressly conferred upon the states the preclusive authority to 

define competency in a manner binding on the Attorney General’s subsection (a)(1)(A) certification determination, the preamble did assert that 

the structure of section 2265 impliedly compels the conclusion that the 

states possess such preclusive authority. The preamble observes in this 

regard that an “internal[] inconsisten[cy]” would result from a contrary 

view because states would then be authorized to issue standards for competency that the Attorney General could reject. 73 Fed. Reg. at 75,331.

We do not see, however, how such a structure would necessarily introduce any such inconsistency. States seeking certification would have 

discretion to craft their own competency standards pursuant to subsection 

(a)(1)(C), and the Attorney General would then review those standards as 

part of his evaluation of whether the state mechanism ensures the appointment of counsel who meet minimum federal competency standards 

pursuant to subsection (a)(1)(A). In this respect, the relationship between 

the counsel competency standards applied as a matter of federal law by 

the Attorney General and the standards provided by the states would 

resemble the “cooperative federalism” model that is familiar from a 

number of federal statutory regimes. See Bd. of Educ. of Hendrick Hudson 

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 (1982) (describing the 

Education of the Handicapped Act, Pub. L. No. 91-230, 84 Stat. 175 

(1970), as amended, as “leav[ing] to the States the primary responsibility 

for developing and executing educational programs for handicapped 

children,” but “impos[ing] significant requirements to be followed in the 

discharge of that responsibility”); see also Wis. Dep’t of Health & Family 

Servs. v. Blumer, 534 U.S. 473, 495 (2002) (observing that “[t]he Medicaid statute . . . is designed to advance cooperative federalism,” and that 

“[w]hen interpreting other statutes so structured, we have not been reluctant to leave a range of permissible choices to the States, at least where 

the superintending federal agency has concluded that such latitude is 

consistent with the statute’s aims”).

Indeed, although the preamble to the 2008 final rule suggests that an 

approach contrary to that final rule would be anomalous, the approach 

adopted in that final rule would introduce anomalies of its own. First, the 
State Procedures for Appointment of Competent Counsel

411

2008 final rule provides no explanation for why Congress would lodge 

the certification function in the Attorney General—thus drawing on his 

time and expertise—if it intended his responsibilities in this capacity to be 

ministerial in nature. Second, the preamble to the 2008 final rule does not 

explain why, absent express indications to the contrary, one should assume Congress intended to establish a statutory framework that confers an 

“array of procedural benefits” on states, contingent upon their meeting a 

required set of qualifications, 152 Cong. Rec. 2446 (Mar. 2, 2006) 

(statement of sponsor Sen. Kyl), but to leave wholly within the discretion 

of the beneficiary states themselves the determination of a critical substantive criterion upon which eligibility under this framework depends. 

Thus, concerns about statutory anomalies do not provide a necessary 

reason to construe section 2265 as compelling the approach adopted in the 

2008 final rule.

Finally, the preamble to the 2008 final rule relied on the fact that the 

2006 amendments to AEDPA added a provision (section 2265(a)(3)) 

providing that “[t]here are no requirements for certification or for application of [chapter 154] other than those expressly stated in [chapter 154].” 

73 Fed. Reg. at 75,331. The text of section 2265(a)(3) does not, however, 

compel the limited view of the Attorney General’s interpretive authority 

that the 2008 final rule adopted. In reasonably construing an ambiguous 

term in a statute that he is charged with administering, the Attorney General would not be adding to the requirements for certification, or otherwise applying chapter 154 in ways not expressly stated. He would merely 

be implementing an express statutory provision—the certification requirement that a state establish a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent

counsel, 28 U.S.C. § 2265(a)(1)(A)—just as agency officials regularly do 

in other contexts under the now familiar Chevron framework. See Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844 

(1984) (“If Congress has explicitly left a gap for the agency to fill, there is 

an express delegation of authority to the agency to elucidate a specific 

provision of the statute by regulation.”).

2.

The legislative history of chapter 154 accords with our conclusion 

that section 2265(a)(1)(A) may be read to afford the Attorney General 
33 Op. O.L.C. 402 (2009)

412

the authority, in the course of exercising his certification function, to 

construe the term “competent” independent of the standards the states 

themselves establish. To be sure, the legislative history makes clear that 

the sponsors of the 2006 amendments were concerned with the manner in 

which federal habeas courts had been approaching their role in the chapter 

154 qualification process. See, e.g., 152 Cong. Rec. 2445–46 (Mar. 2, 

2006) (statement of Sen. Kyl) (“Chapter 154 has received an extremely 

cramped interpretation, denying the benefits of qualification to States that 

do provide qualified counsel and eliminating the incentive for other States 

to provide counsel.”). But the sponsors’ concerns do not suggest that, in 

establishing a new role for the Attorney General in certifying state mechanisms, Congress meant to dispense with independent federal review of 

the adequacy of those mechanisms. To see why, it is helpful to examine 

the origins of the 2006 amendments.

Although the 2006 amendments made federal habeas court judgments 

about the availability of expedited habeas procedures dependent upon the 

Attorney General’s prior certification, it is significant that these provisions did not alter the terms of the substantive requirements that states had 

to meet in order to qualify for those procedures. Prior to the 2006 amendments, states already had to “establish a mechanism for the appointment” 

of counsel who were competent, and to establish competency standards 

for such counsel, in order to qualify for the expedited procedures. Yet, 

when Congress initially imposed these substantive requirements in 1996, 

and for the decade thereafter, the relevant language was not understood to 

reflect a congressional intent to insulate states from independent federal 

review of whether their mechanisms for appointing counsel, as well as the 

counsel competency standards they provided, were adequate to qualify for 

expedited habeas procedures. 

Congress’s original 1996 enactment came in response to a proposal of 

the 1989 Report of the Ad Hoc Committee of the Judicial Conference on 

Federal Habeas Corpus in Capital Cases, known as the “Powell Committee Report” (because the Committee was chaired by former Supreme 

Court Justice Lewis Powell). H.R. Rep. No. 104-23, at 16 (1995). Following the Committee’s recommendations, AEDPA created a system to 

induce states to provide indigent capital defendants with post-conviction 

representation, offering what was described in the legislative history as a 

“quid pro quo,” or an “opt-in” system, now codified as chapter 154. Id. at 

10, 16. As one of the chief sponsors of the 2006 amendments to chapter 
State Procedures for Appointment of Competent Counsel

413

154 acknowledged, with a few changes not relevant here, “the Powell 

Committee Report’s recommendations are what is now chapter 154,” and 

that Report “is thus a very useful guide to understanding chapter 154.” 

152 Cong. Rec. 2447 (Mar. 2, 2006) (statement of Sen. Kyl); see also 

Ashmus v. Woodford, 202 F.3d 1160, 1163 (9th Cir. 2000) (chapter 154 

“essentially codifie[d]” the Powell Committee proposal); H.R. Rep. No. 

104-23, at 16 (H.R. 729, which became section 107(a) of AEDPA, “incorporates” the Powell Committee Report’s recommendations). 

Like the current section 2265(a)(1)(A), the Powell Committee Report’s 

proposed 28 U.S.C. § 2256(b) would have provided a state with advantageous procedures in federal habeas proceedings brought by capital defendants if the state established “a mechanism for the appointment, compensation and payment of reasonable litigation expenses of competent 

counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct 

appeal to the court of last resort in the State or have otherwise become 

final for State law purposes.” 135 Cong. Rec. 24,696 (Oct. 16, 1989). 

And, like current section 2265(a)(1)(C), the Powell Committee Report’s 

proposed section 2256(b) also would have required the state to “provide 

standards of competency for the appointment of such counsel.” 135 Cong. 

Rec. 24,696. The express purpose of the structure envisioned by the 

Powell Committee Report was to ensure that collateral review of capital 

convictions would “be fair, thorough, and the product of capable and 

committed advocacy.” Id.; see also id. at 24,695 (“[F]or States that are 

concerned with delay in capital litigation, it is hoped that the procedural 

mechanisms we recommend will furnish an incentive to provide the 

counsel that are needed for fairness.”). “Central to the efficacy of this 

scheme,” the Committee wrote, was “the development of standards governing the competency of counsel chosen to serve in this specialized and 

demanding area of litigation.” Id. at 24,696; see also id. (“Only one who 

has the clear ability and willingness to handle capital cases should be 

appointed.”). The Committee explained that it was “more consistent with 

the federal-state balance to give the States wide latitude to establish a 

mechanism that complies with [the scheme].” Id. But, critically for present purposes, the Committee stressed that “[t]he final judgment as to the 

adequacy of any system for the appointment of counsel under subsection 

(b) . . . rests ultimately with the federal judiciary.” Id. (emphasis added). 
33 Op. O.L.C. 402 (2009)

414

By enacting section 107(a) of AEDPA in 1996, Congress codified (in 

what was then 28 U.S.C. § 2261(b)) language that is essentially the same 

as appeared in the Powell Committee Report and that now appears in 

section 2265(a)(1), see supra p. 405. Congress did not adopt the Judicial 

Conference’s suggested amendment that would have established federal 

statutory standards for counsel competence, 4 but the framework it 

enacted was consistent with the suggestion of the Powell Committee that 

there be independent federal review to determine “[t]he final judgment as 

to the adequacy of any system for the appointment of counsel.” 135 Cong. 

Rec. 24,696 (emphasis added). And, indeed, during the decade the original AEDPA language was in effect, federal habeas courts construed thensection 2261(b) to permit their independent review of the “adequacy” of 

the states’ competency standards.5

 4 See Report of the Proceedings of the Judicial Conference of the United States 8 (Mar. 

13, 1990); cf. 18 U.S.C. § 3599 (2006 & Supp. II 2008) (providing for the appointment of 

counsel for indigent capital defendants in post-conviction proceedings in federal court and 

setting qualifications that such counsel must meet).

5 For example, numerous district courts concluded that states defending capital convictions were not entitled to expedited habeas procedures because the state competency 

standards did not provide for the appointment of counsel with adequate experience and 

skills in various facets of that specialized area of practice. See Colvin-El v. Nuth, No. Civ. 

A. AW 97-2520, 1998 WL 386403, at *6 (D. Md. July 6, 1998) (Maryland’s competency 

standards not “adequate” because they did not require counsel to have experience or 

competence in raising collateral issues: “Given the extraordinarily complex body of law 

and procedure unique to post-conviction review, an attorney must, at a minimum, have 

some experience in that area before he or she may be deemed ‘competent.’”); Wright v.

Angelone, 944 F. Supp. 460, 467 (E.D. Va. 1996) (Virginia’s competency standards are 

“deficient” and “grossly inadequate,” and “fail to satisfy the requirements of [chapter 

154],” because a state must require counsel “to have experience and demonstrated competence in bringing habeas petitions”); Hill v. Butterworth, 941 F. Supp. 1129, 1142 (N.D. 

Fla. 1996) (“[t]he plain language of 28 U.S.C. § 2261 contemplates counsel who are 

competent through capital, post-conviction experience”; and Florida’s competency

standards were not “adequate” because they did not require “any degree of specialization 

or skill in the arena of habeas proceedings” and made “no provision for any degree of 

competence or experience for substitute counsel”), vacated on other grounds, 147 F.3d 

1333 (11th Cir. 1998); see also Austin v. Bell, 927 F. Supp. 1058, 1061–62 (M.D. Tenn. 

1996) (“Although Tennessee provides for the appointment of counsel for indigent defendants, and has standards for determining whether appointed counsel has sufficiently 

performed, Tennessee imposes insufficient standards to ensure that only qualified, 

competent counsel will be appointed to represent habeas petitioners in capital cases.”) 

(internal citations omitted). 
State Procedures for Appointment of Competent Counsel

415

To be sure, the sponsors of the 2006 amendments to AEDPA intended 

to bring about an important change in the framework that the Powell 

Committee Report proposed and that Congress enacted into law in 1996. 

But the legislative history of the 2006 amendments suggests that the 

sponsors were concerned with the consequences of leaving the adequacy 

review in the hands of federal habeas courts rather than with the prospect 

of federal officials in general—let alone the Attorney General in particular—exercising independent authority to evaluate counsel competence.

The legislative history shows that the sponsors focused on at least three 

specific problems they perceived in the AEDPA process, each of which 

they addressed with new language in the 2006 amendments. None of these 

responses indicates that the sponsors intended to require the Attorney 

General to make his certification decision solely on the basis of the competency standards established by the states. The legislative history of the 

new amendments suggests, if anything, that the Attorney General would 

instead be able to bring his expertise to bear in exercising the new certification authority that Congress conferred upon him.

First, the sponsors expressed the view that the courts hearing prisoner 

habeas cases could not fairly assess whether states satisfied the statutory 

standards because such courts had a “conflict of interest” on the question. 

151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extended remarks of 

Rep. Flake). “Currently, . . . the court that decides whether a State is 

eligible for chapter 154 is the same court that would be subject to its time 

limits. Unsurprisingly, these courts have proven resistant to chapter 154.” 

152 Cong. Rec. 2441 (Mar. 2, 2006) (statement of Sen. Kyl).6To address 

 

Courts of appeals consistently engaged in a similar analysis in determining whether 

states were entitled to the benefits set forth in the pre-2006 chapter 154. See, e.g., Baker v. 

Corcoran, 220 F.3d 276, 286 n.9 (4th Cir. 2000) (noting that its ruling on a different 

ground obviated the need to “consider whether Maryland’s competency standards, if 

complied with, are adequate to ensure that prisoners subject to capital sentences receive 

competent representation in post-conviction proceedings”); Ashmus v. Calderon, 123 F.3d 

1199, 1208 (9th Cir. 1997) (concluding that “a state’s competency standards need not 

require previous experience in habeas corpus litigation” because “[m]any lawyers who 

could competently represent a condemned prisoner would not qualify under such a 

standard”), rev’d on other grounds, 523 U.S. 740 (1998), vacated, 148 F.3d 1179 (9th Cir. 

1998).

6 See also 152 Cong. Rec. 2445 (Mar. 2, 2006) (statement of Sen. Kyl) (“AEDPA left 

the decision of whether a State qualified for the incentive to the same courts that were 
33 Op. O.L.C. 402 (2009)

416

this issue, section 507 of the PATRIOT Improvement Act “places the 

eligibility decision in the hands of a neutral party—the U.S. Attorney 

General, with review of his decision in the D.C. Circuit, which does not 

hear habeas petitions.” Id. If anything, then, this legislative history suggests that the legislation was designed to substitute one independent 

federal reviewer (the habeas judge) with another (the Attorney General) 

thought more likely to be “neutral.” See also 151 Cong. Rec. E2640 (daily 

ed. Dec. 22, 2005) (extended remarks of sponsor Rep. Flake) (explaining 

that Congress was conferring upon the Attorney General the authority to 

certify state mechanisms under section 2265(a)(1) in part because he “has 

expertise in evaluating State criminal justice systems”). That the sponsors 

of the legislation thought the Attorney General would be the more appropriate reviewing entity hardly indicates that Congress intended to make 

the Attorney General’s judgment dependent upon the states’ own.

Second, section 107 of AEDPA had provided that the state appointment 

mechanism could be established “by statute, rule of its court of last resort, 

or by another agency authorized by State law.” 28 U.S.C. § 2261(b) 

(2000). Congress’s excision of this language in the 2006 amendments 

addressed the concern that arose from court decisions that construed such 

language to significantly constrain the manner in which a state could 

establish such a mechanism. For example, Senator Kyl, a sponsor of the 

2006 amendments, pointed to Ashmus, 202 F.3d 1160, in which the U.S. 

Court of Appeals for the Ninth Circuit held that California did not qualify 

under chapter 154 because the state’s competency standards were contained in its Standards of Judicial Administration rather than in its Rules 

of Court; Senator Kyl called this conclusion “a hypertechnical reading of 

the statute.” 152 Cong. Rec. 2446 (Mar. 2, 2006). The 2006 amendments 

“abrogate[d]” this ruling by removing the “statute or rule of court” language that had been “construed so severely by Ashmus,” so that “[t]here is 

no longer any requirement, express or implied, that any particular organ 

of government establish the mechanism for appointing and paying counsel 

or providing standards of competency—States may act through their 

 

impacted by the time limits. This has proved to be a mistake.”); 151 Cong. Rec. E2640

(daily ed. Dec. 22, 2005) (extended remarks of Rep. Flake) (“The trouble with chapter 

154 is that the courts assigned to decide when it applies are the same courts that would be 

bound by the chapter’s strict deadlines if a State is found to qualify. Simply put, the 

regional courts of appeals have a conflict of interest.”).
State Procedures for Appointment of Competent Counsel

417

legislatures, their courts, through agencies such as judicial councils, or 

even through local governments.” Id.

Finally, the sponsors of the 2006 amendments expressed particular concern with courts concluding that even when the federal statutory requirements had been satisfied, additional procedures could be imposed as a 

matter of judicial discretion. In particular, the sponsors expressed concern 

about the Ninth Circuit’s decision in Spears v. Stewart, 283 F.3d 992 (9th 

Cir. 2001). In that case, the court of appeals held that even though Arizona’s counsel appointment mechanism (including Arizona’s competency 

standards) on its face satisfied the requirements of chapter 154, the state 

was nonetheless not entitled to benefit from the expedited procedures in 

the particular case because its appointment of the petitioner’s counsel did 

not comply with the state’s own requirement that counsel be appointed in 

an expeditious manner. Id. at 1018–19. See 151 Cong. Rec. E2640 (daily 

ed. Dec. 22, 2005) (extended remarks of Rep. Flake) (noting that the 

Ninth Circuit “found that Arizona’s counsel system met chapter 154 

standards, but . . . nevertheless came up with an excuse for refusing to 

apply chapter 154 to that case”); 152 Cong. Rec. 2446 (Mar. 2, 2006) 

(statement of Sen. Kyl) (similar). According to the sponsors of the legislation, 28 U.S.C. § 2265(a)(3), which “forbids creation of additional requirements not expressly stated in the chapter, as was done in the Spears

case,” 152 Cong. Rec. 2446, addressed this concern. Congress’s intent to 

limit the requirements for certification to those “expressly stated,” therefore, does not indicate a corollary intent to strip the Attorney General of 

the authority to apply those requirements that are “expressly stated,” 

including the requirement in section 2265(a)(1)(A) that states establish a 

mechanism for the appointment of “competent counsel.”

3.

For all of these reasons, we believe it would be reasonable to construe 

section 2265(a)(1) to permit the Attorney General to certify only those 

state mechanisms that provide for the appointment of counsel who meet a 

minimum federal threshold of competency. If you so construe the statute, 

then you may conduct the competency evaluation entirely on a case-bycase basis as particular state mechanisms are presented for your certification. Alternatively, pursuant to section 2265(b), you may promulgate 

regulations that set forth the federal minimum competency standards that 
33 Op. O.L.C. 402 (2009)

418

you will apply in making certification determinations, although you are 

not required to take this action. Under either approach, however, we 

believe that, consistent with the “traditional tools of statutory construction,” INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987), you may look 

to a variety of sources in giving content to the federal standards that you 

promulgate and apply.7 We believe, however, that the text of subsection 

(a)(1)(C), when read in light of the legislative history of chapter 154, 

counsels against imposing too stringent a federal standard. A federal 

standard that is set too high would not afford the states discretion, as 

contemplated by Congress, to develop their own standards, within reasonable bounds, of counsel competency and mechanisms for ensuring that 

competent counsel are appointed. In particular, an unduly onerous 

standard might render trivial the section 2265(a)(1)(C) requirement that 

the states develop and provide their own standards of competency. Although we reject the view that subsection (a)(1)(C) must be read to bind 

the Attorney General to a state’s chosen competency standards, that 

subsection may fairly be construed to reflect Congress’s intent that the 

Attorney General not unduly constrain state discretion by imposing an 

 7 A nonexhaustive list of sources you might consult in interpreting the term “competent 

counsel” would include judicial precedent, see, e.g., McFarland v. Scott, 512 U.S. 849, 

855–56 (1994) (“capital defendants [are unlikely to be] able to file successful petitions for 

collateral relief without the assistance of persons learned in the law”) (internal quotation 

marks omitted); federal statutes, see, e.g., 18 U.S.C. §§ 3599(c)–(d) (setting qualifications 

that counsel must have in order to represent indigent capital defendants in post-conviction 

proceedings in federal court); the Model Rules of Professional Conduct, see, e.g., American Bar Association, Model Rule of Professional Conduct 1.1 (2007) (“Competent 

representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”); and American Bar Association guidelines, see, 

e.g., American Bar Association, Guidelines for the Appointment and Performance of 

Defense Counsel in Death Penalty Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 

913 (2003); see also Wiggins v. Smith, 539 U.S. 510, 524 (2003) (observing that the 

Supreme Court “long ha[s] referred” to American Bar Association “standards for capital 

defense work” “as ‘guides to determining what is reasonable’”) (quoting Strickland v. 

Washington, 466 U.S. 668, 688 (1984)); cf. Bobby v. Van Hook, 558 U.S. 4, 8 n.1 (2009) 

(per curiam) (reserving the question of whether it would be legitimate to use the 2003 

ABA guidelines to evaluate whether an attorney’s performance meets the reasonableness 

standard required by the Sixth Amendment; explaining that for such use to be proper, “the 

Guidelines must reflect ‘[p]revailing norms of practice’ . . . and must not be so detailed 

that they would ‘interfere with the constitutionally protected independence of counsel and 

restrict the wide latitude counsel must have in making tactical decisions’”) (quoting 

Strickland, 466 U.S. at 688, 689).
State Procedures for Appointment of Competent Counsel

419

overly stringent, one-size-fits-all federal standard of counsel competency. 

And that same conclusion accords with the legislative history that is 

relevant here.

B.

You have also asked us whether chapter 154 can reasonably be construed to require the Attorney General to evaluate whether a proposed 

state appointment mechanism—including, in particular, a state’s provision 

of a certain level of attorney compensation—is adequate to ensure that 

competent counsel will, in fact, be appointed for capital prisoners in state 

post-conviction proceedings. The 2008 final rule appeared to construe the 

statute to prohibit the Attorney General from making such an evaluation. 

With particular respect to compensation, the preamble to the 2008 final 

rule concluded that chapter 154 “requires only that the state have a mechanism for the ‘compensation’ of postconviction capital counsel, leaving 

determination of the level of compensation to the states.” 73 Fed. Reg. at 

75,331. In explaining this approach, the preamble relied in part on section 

2265(a)(3), reasoning that “[p]rescribing minimum amounts of compensation to ensure ‘adequate’ or ‘reasonable’ compensation . . . would add to 

the statutory requirements for certification, which 28 U.S.C. § 2265(a)(3) 

does not allow.” 73 Fed. Reg. at 75,332; see also id. at 75,331 (subsection (a)(3) prohibits “the Attorney General . . . from supplanting the 

states’ discretion in th[e] area [of attorney compensation]”).

In our view, this conclusion set forth in the preamble to the 2008 final 

rule is not warranted. Section 2265(a)(1)(A), by its plain terms, requires 

the Attorney General to determine whether the state has established a 

mechanism for the compensation of counsel who are “competent.” We 

believe this language may reasonably be construed to require the Attorney 

General to determine whether a particular state mechanism would, in fact, 

ensure appointment of competent counsel. Moreover, we believe that in 

making such a determination it would be reasonable to conclude that a 

state appointment mechanism must provide for compensation at a level 

sufficient to encourage competent attorneys to accept appointments and to 

enable those attorneys to provide their capital clients with competent legal 

representation (unless the state mechanism by some other means ensures 

representation by competent counsel notwithstanding low compensation 

rates).
33 Op. O.L.C. 402 (2009)

420

To be sure, there is no language specifically authorizing the Attorney 

General to evaluate the adequacy of attorney compensation provided by a 

state’s appointment mechanism. Moreover, while section 2265(a)(1)(A) 

mandates that the state provide reimbursement for “reasonable” litigation 

expenses, it does not similarly qualify the requirement of attorney “compensation.” But we do not think the absence of explicit statutory text 

establishing that a state appointment mechanism must pay attorneys a 

certain level of compensation demonstrates that Congress intended for the 

Attorney General to be indifferent as to the level of compensation the 

state provides. Cf. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222 

(2009) (deeming it “eminently reasonable to conclude that [statutory 

provision’s] silence” on whether an agency can employ cost-benefit 

analysis “is meant to convey nothing more than a refusal to tie the agency’s hands”).

This conclusion draws support from the close nexus between the adequacy of compensation, on the one hand, and the ability and willingness 

of competent attorneys to take on indigent capital clients and provide 

them with effective representation, on the other—a nexus recognized in 

longstanding guidelines and standards for capital counsel. See American 

Bar Association, Guidelines for the Appointment and Performance of 

Defense Counsel in Death Penalty Cases § 9.1 (rev. ed. 2003), reprinted 

in 31 Hofstra L. Rev. 913, 981 (2003) (“Counsel in death penalty cases 

should be fully compensated at a rate that is commensurate with the 

provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation.”); see also 

id. § 9.1 cmt., reprinted in 31 Hofstra L. Rev. at 986 (“Low fees make it 

economically unattractive for competent attorneys to seek assignments 

and to expend the time and effort a case may require.”); cf. 18 U.S.C. 

§ 3599(g)(1) (setting minimum compensation level in providing for appointment of counsel for a defendant otherwise “unable to obtain adequate 

representation” in a federal criminal action involving a capital charge). 

Judicial precedent from the decade before the 2006 amendments also 

supports this reading. Several courts that had to determine whether states 

qualified for the benefits of chapter 154 assumed that the pre-2006 version of section 2261(b) required independent evaluation of the adequacy 

of the compensation that a state seeking certification provided the attor-
State Procedures for Appointment of Competent Counsel

421

neys appointed pursuant to its mechanism.8As the U.S. District Court for 

the District of Maryland observed, “although § 2261(b) does not expressly 

require that a State establish a mechanism for the payment of reasonable 

compensation, . . . [c]learly, the payment of at least minimally reasonable 

compensation is necessary to obtain competent counsel, an express requirement of § 2261(b).” Booth v. Maryland, 940 F. Supp. 849, 854 n.6 

(D. Md. 1996), vacated on other grounds, 112 F.3d 139 (4th Cir. 1997).

III.

Because we have found no evidence in the language or legislative history of chapter 154 to suggest that Congress clearly intended a different 

understanding, we conclude that you may interpret the statute to permit 

evaluation of whether a proposed state mechanism—including the state’s 

compensation system—is sufficient to ensure appointment of competent 

counsel in state post-conviction proceedings brought by indigent prisoners 

who have been sentenced to death.9 We also conclude that you may 

promulgate regulations pursuant to section 2265(b) that set forth the 

standards you will apply in making such a determination. 

DAVID J. BARRON

Acting Assistant Attorney General

Office of Legal Counsel

 8 See, e.g., Ashmus, 123 F.3d at 1208; Baker, 220 F.3d at 285–86; Colvin-El, 1998 WL 

386403, at *4; Booth v. Maryland, 940 F. Supp. 849, 854 n.6 (D. Md. 1996), vacated on 

other grounds, 112 F.3d 139 (4th Cir. 1997); cf. Spears, 283 F.3d at 1015 (chapter 154 

“requires that the appointment mechanism reasonably compensate counsel”); Mata v. 

Johnson, 99 F.3d 1261, 1266 (5th Cir. 1996) (holding that “we do not find [Texas’s] 

limits” on attorney compensation and litigation expense reimbursement “facially inadequate”), vacated in part on other grounds, 105 F.3d 209 (5th Cir. 1997).

9 You have not asked us to address, and we do not address here, whether the Attorney 

General could impose a time limit, or sunset, on his certification of a state mechanism, or 

whether he would be authorized to revisit and reconsider a chapter 154 certification if a 

certified state mechanism proved inadequate in practice to ensure appointment of competent counsel.