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S. HRG. 109–366

HABEAS REFORM: THE STREAMLINED

PROCEDURES ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 16, 2005

Serial No. J–109–52

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 62

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 27

prepared statement .......................................................................................... 83

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 18

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2

prepared statement .......................................................................................... 94

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Eisenberg, Ronald, Deputy District Attorney, Philadelphia District Attorney’s 

Office, Philadelphia, Pennsylvania ..................................................................... 5

McKibben, Howard D., Senior United States District Judge for the District 

of Nevada, and Chairman, Committee on Federal-State Jurisdiction, Judicial Conference of the United States, Reno, Nevada ......................................... 13

Waxman, Seth P., former Solicitor General of the United States, and Partner, 

Wilmer, Cutler, Pickering, Hale and Dorr, Washington, D.C. ......................... 7

QUESTIONS AND ANSWERS 

Responses of Howard D. McKibben to questions submitted by Senator Leahy . 37

SUBMISSIONS FOR THE RECORD 

American Bar Association, Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra Law School, Washington, 

D.C., prepared statement .................................................................................... 44

American Judicature Society, Judicature, September-October 2005, Des 

Moines, Iowa, editorial ........................................................................................ 57

Arizona Daily Star, Tucson, Arizona, July 9, 2005, editorial ............................... 58

Concord Monitor, Concord, New Hampshire, July 17, 2005, editorial ................ 60

Denver Post, Denver Colorado, August 9, 2005, editorial .................................... 63

Detroit Free Press, Detroit, Michigan, July 19, 2005, editorial ........................... 64

Eisenberg, Ronald, Deputy District Attorney, Philadelphia District Attorney’s 

Office, Philadelphia, Pennsylvania, prepared statement .................................. 65

Federal Public and Community Defenders, Thomas W. Hillier, II, Federal 

Public Defender, Chair, Legislative Expert Panel, letter ................................. 76

Hartford Courant, Hartford, Connecticut, October 25, 2005, editorial ............... 85

Journal Gazette, Fort Wayne, Indiana, August 2, 2005, editorial ...................... 86

Kansas City Star, Kansas City, Missouri: 

July 15, 2005, editorial .................................................................................... 87

October 6, 2005, editorial ................................................................................. 90

Keene Sentinel, Keene, New Hampshire, July 23, 2005, editorial ...................... 91

Knight-Ridder News Wire, Philadelphia, Pennsylvania, July 23, 2005, editorial ...................................................................................................................... 92

Los Angeles Times, Los Angeles, California, July 13, 2005, editorial ................. 96

McKibben, Howard D., Senior United States District Judge for the District 

of Nevada, and Chairman, Committee on Federal-State Jurisdiction, Judicial Conference of the United States, Reno, Nevada, prepared statement ..... 97

New York Times, New York, New York, July 16, 2005, editorial ....................... 113

Philadelphia Inquirer, Philadelphia, Pennsylvania, October 28, 2005, editorial ...................................................................................................................... 114

Page

IV

St. Louis Post Dispatch, St. Louis, Missouri, July 13, 2005, editorial ................ 115

St. Petersburg Times, St. Petersburg, Florida: 

August 26, 2005, editorial ................................................................................ 117

October 31, 2005, editorial ............................................................................... 118

San Francisco Chronicle, San Francisco, California, July 14, 2005, editorial .... 119

San Jose Mercury News, San Jose, California, August 19, 2005, editorial ........ 120

Tennessean, Nashville, Tennessee, July 22, 2005, editorial ................................ 121

Washington Post, Washington, D.C.: 

July 10, 2005, editorial .................................................................................... 122

August 19, 2005, editorial ................................................................................ 123

September 29, 2005, editorial .......................................................................... 124

Waxman, Seth P., former Solicitor General of the United States, and Partner, 

Wilmer, Cutler, Pickering, Hale and Dorr, Washington, D.C., prepared 

statement .............................................................................................................. 125

(1)

HABEAS REFORM: THE STREAMLINED 

PROCEDURES ACT 

WEDNESDAY, NOVEMBER 16, 2005

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 9:44 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding.

Present: Senators Specter, Kyl, Cornyn, Leahy, Feinstein, and 

Feingold.

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA

Chairman SPECTER. The Judiciary Committee will proceed with 

this hearing on habeas corpus reform. We have been awaiting the 

arrival of other Committee members, but at this time we will move 

forward.

This is the second hearing on the legislation introduced by Senator Kyl. It is an effort to balance some very complex considerations on death penalty cases to be sure that the constitutional 

rights of those convicted are observed with the collateral proceedings in habeas corpus, but at the same time to do what is fair 

to move ahead the conclusion of these proceedings.

This is an area that I have been very familiar with over the 

years since my days as district attorney of Philadelphia and litigating many habeas corpus proceedings in the State courts and in 

the Federal courts. There is an overhang of opposition, I think fairly stated, to put a time limit on these proceedings because of people 

who are opposed to the death penalty. And I can understand that. 

It is a complicated subject, and people of good will and good faith 

are on both sides of the issue.

I think it is important to note that in this legislation, we have 

expanded the DNA to do what is scientifically possible to exonerate 

the innocent. I note just the recent statistics released about a reduction in the number of death penalty cases, executions, and I 

think that is occasioned by public doubts as to the guilt of some 

who are under the death penalty and the growing concern about 

the death penalty. But as long as it is on the books and the States 

are moving ahead to enforce it, we ought to do what is practical 

to avoid enormous delays. 

The scheduling of this hearing has been very difficult because we 

cannot seem to get all the witnesses together at the same time, and 

2

only this morning I found that we do not have the representatives 

from the Chief Justices here, and I regret that. But we have the 

Judicial Conference here and we have former Solicitor General 

Seth Waxman, who appeared at an earlier hearing and has been 

very helpful in trying to work out some of the intricacies. And we 

have an astute representative of the prosecutors here, somebody 

from the Philadelphia District Attorney’s Office. He did not serve 

at the right time, but he is serving now. 

Senator KYL. It gets better all the time. 

Chairman SPECTER. And they are getting much better all the 

time. They relegate need ex-D.A.’s to who knows where. 

I had made a commitment to Senator Kyl to try to move this 

along. He has been very cooperative on the first substitute which 

my staff prepared under my name and the second substitute. And 

I think we have gone a long, long way. And Senator Feingold has 

been appropriately urging a hearing. I have been filibustering, Patrick— 

Senator LEAHY. Thank you. I showed up. 

Chairman SPECTER [continuing]. To make sure that you were 

here on time to make your opening statement. I have still got a 

minute and 15 seconds left. I ordinarily want to take 2 minutes. 

But as I was saying, Senator Feingold has been appropriately insistent on these hearings, and that is right. We ought to consider 

them. I was tempted at one point to move the bill out of Committee 

and decided not to, to give another hearing and to make every conceivable effort to meet all of the objections and to try to move 

ahead so that we do not get hung up on some claims which are exhausted and some which are unexhausted in the State court, which 

has an interminable tennis match, and to do what we could to provide effective assistance of counsel. And the 1996 legislation goes 

a long way there, but it has not been implemented because it has 

been so complicated, and we are working on that collaterally in 

other legislation which is being considered. 

I am delighted to yield now to our distinguished Ranking Member, Senator Leahy.

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT

Senator LEAHY. Thank you, Mr. Chairman, and I know your 

penchant—which I happen to agree with, and what I have followed 

the various times I have been Chairman—of starting on time and 

I appreciate your—I know you held up while I tried to get through 

unbelievable traffic jams. And I am glad you are holding this hearing. It is our second hearing. Since our first hearing back on July 

13th, I believe, the bill has been strongly opposed by a wide range 

of experts and practitioners, and it has twice been rewritten. 

Yesterday, the Senate voted to strip Federal courts of the authority to consider habeas petitions from detainees being held in U.S. 

custody as enemy combatants, demonstrating once again to the rest 

of the world our great commitment to the rule of law, I guess. At 

no time before in our Nation’s history have habeas rights been permanently cutoff from a group of prisoners. I found it interesting we 

are doing it at the same time when the President is abroad telling 

other countries that they must improve their commitment to the 

3

rule of law and to people’s rights. And with the support of the 

White House, we are moving here to cutoff people’s rights. It is fascinating double-talk. And we did it without even holding a Committee hearing on issues so fundamental to basic precepts and 

basic rights under our system of Government. 

I am glad to see our witnesses today. I am glad to see my friend 

Seth Waxman, a former Solicitor General. When we adopted the 

current version of the bill in October, it was claimed that this 

version addressed, or at least substantially addressed, all the concerns that Mr. Waxman had raised, and I do not believe that is the 

case. I will let him speak for himself on it. 

This version has a number of problems. The bill seeks to impose 

radical and unprecedented restrictions on the Great Writ of habeas 

corpus. I think it injects confusion into settled law. That only increases litigation. It does not decrease it. It would eliminate essential protections against wrongful convictions without making any 

kind of provisions for claims of innocence. 

If it is passed, it would preclude Federal courts from enforcing 

Federal constitutional rights. Just think about it. It would preclude 

them. Amazing court-stripping. 

The legal community recognizes this. The American Bar Association calls the bill before us ‘‘a significant setback for justice.’’ Both 

the U.S. Judicial Conference and the Conference of Chief Justices, 

who normally take a pretty conservative attitude on such things, 

have expressed grave concerns with this bill. They have urged further study and analysis before we start tearing apart the complex 

edifice that is Federal habeas law. The State Chief Justices cautioned us against passing a bill with ‘‘unknown consequences for 

the State courts.’’ The Judicial Conference reported the vast majority of habeas cases are already moving expeditiously through the 

system. We will hear more from them this morning. 

I know the bill has its defenders. But not one defender of the bill 

has offered systemic evidence of a real national problem with Federal habeas corpus under the current, post-AEDPA regime. This 

bill I think is a crude, partisan solution to an unproven and largely 

non-existent problem, and no amount of tinkering is going to improve that. 

If we want to reform the system, improve the quality, efficiency, 

and finality of criminal justice, there is a different solution. Unlike 

the SPA, it is a solution that would solve problems in the criminal 

justice system before they arise, rather than complicating the process of responding to problems via habeas. Unlike the SPA, it is a 

solution supported by the legal community and the public at large. 

And it is a solution to which the President and both Houses of Congress have previously committed on a bipartisan basis. It is a 

promise we made to the American people—a promise we made—

and I think we have a duty not to renege on that promise. 

I speak, of course, of the Innocence Protection Act. We passed the 

Act 1 year ago in response to the shameful, widespread evidence 

of hopelessly underfunded, too often incompetent, and even drunk 

and sleeping defense counsel in some State capital trials. We did 

so because we saw only too well the costs of that systemic failure: 

innocent men on death row, and repeated, fundamental violations 

of constitutional rights. 

4

The Act established a new grant program to improve the quality 

of legal representation. This program would greatly reduce the risk 

of error in those cases. It would reduce the frequency of the most 

expensive and drawn-out post-conviction proceedings. If we are 

truly committed to improving the criminal justice system, let’s not 

let Congress’s check bounce by failing to fund something that we 

and the President and the other body all agreed to last year. 

We all agree that the trial should be the main event and abuses 

of habeas corpus should not be tolerated. I was a prosecutor. I believe that very strongly. But let’s remember the trial process itself 

is flawed and it will remain flawed if we continue to skimp on essential funding. And wrongful convictions do occur. As Justice 

O’Connor has told us, the death penalty system is so flawed in 

America today we probably already have executed an innocent person. So let’s not pass ill-conceived, unnecessary legislation that 

would only make an unacceptable situation far worse. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Our first witness is— 

Senator KYL. Mr. Chairman, might I, as a matter of personal 

privilege, ask Senator Leahy, if I heard him correctly, that he described my legislation as a ‘‘crude, partisan solution.’’ Is that what 

you said, Senator Leahy? 

Senator LEAHY. I believe this legislation is, yes. I believe this legislation is not addressing—especially after we passed the Innocence 

Protection Act— 

Senator KYL. The question is whether you said ‘‘crude, partisan 

solution.’’ If so, I resent that, Mr. Chairman and Senator Leahy. I 

have tried to work in a bipartisan way. We have taken 6 months 

now. I have worked with the Chairman. We have tried very hard 

to do something that responds to a real problem here, and I think 

that we ought to be discussing this in a sensible, careful, constructive way, and not turn it into some kind of a partisan attack and 

get into name-calling. 

Senator LEAHY. What I said was—let’s put it all in context. I said 

that I know the bill has its defenders, but not one defender of the 

bill has offered systemic evidence of a real national problem with 

Federal habeas corpus under the current, post-AEDPA regime, and 

the bill remains a crude, partisan solution to an unproven, largely 

non-existent problem, and no amount of tinkering will solve that. 

I have a great deal of respect for the Senator from Arizona. We 

have worked together on a number of issues. My feeling about this 

bill remains the same. 

Chairman SPECTER. Senator Kyl, would you care to respond further? 

Senator KYL. Mr. Chairman, I will just note that there are organizations that believe that this is a proper response to a Federal 

problem. The National District Attorneys’ Association at their national convention recently endorsed generally this legislation, and 

there are others. And I will put a statement in the record, with 

your approval, that— 

Chairman SPECTER. Without objection it will be made a part of 

the record. 

5

Senator KYL [continuing]. Represents some more recent evidence 

of this phenomenon than was presented at the first hearing that 

we held. 

Chairman SPECTER. Thank you, Senator Kyl. 

We now turn to Deputy District Attorney Ronald Eisenberg of 

the Philadelphia District Attorney’s Office. He is the head of the 

Law Division, which has responsibility for direct appeals, post-conviction matters, Federal litigation, and legislation. He comes from 

a very busy office which has hundreds of homicides, 500 during my 

tenure there some time ago; tens of thousands of cases, 30,000 during my tenure some time ago; and is very experienced, of necessity, 

in habeas corpus matters. 

Mr. Eisenberg, we thank you for coming back again, and to the 

extent you could focus on the length of time and the time lapses 

occasioned by the matters being referred to the Federal court and 

being remanded because of the failure to exhaust State remedies, 

and another round in the State courts, as to how long that takes, 

and then back to the district court, in the Eastern District and the 

Third Circuit, we would be appreciative.

STATEMENT OF RONALD EISENBERG, DEPUTY DISTRICT ATTORNEY, PHILADELPHIA DISTRICT ATTORNEY’S OFFICE, 

PHILADELPHIA PENNSYLVANIA

Mr. EISENBERG. Mr. Chairman and members of the Committee, 

thank you for the opportunity to testify before you today. 

I am the supervisor of the Law Division in the Philadelphia District Attorney’s Office. We handle now hundreds of Federal habeas 

corpus petitions each year, although many of those drag on in litigation for several years, and many in crimes that occurred when 

I first joined the office 24 years ago. 

I would like to address some of the challenges that have been 

raised to the Streamlined Procedures Act. I am aware of the view 

preliminarily that the Federal habeas corpus review process is not 

in need of reform, that problems, if any, are localized in jurisdictions like the Ninth Circuit Court of Appeals. 

Of course, the Ninth Circuit is quite a large locality and worthy 

of Congressional attention in and of itself, but it is by no means 

unique when it comes to the gyrations imposed by current Federal 

helicopter practice. 

My experience has been in the Third Circuit, where we face almost exactly the same issues as my colleagues in States such as 

Arizona and California. I also serve on the board of a national capital prosecutors organization, and I meet regularly with lawyers 

from all over the country. We are all fighting the same habeas battles—over procedural default and exhaustion and filing deadlines 

and certificates of appealability and a dozen other habeas concepts 

that ought to be straightforwardly resolved but seldom are. 

Most habeas questions never reach the Supreme Court, so when 

circuit court decisions slow down the application of the habeas statute, we are generally stuck with them. 

Now, I am aware of the argument against habeas reforms that, 

to the extent problems exist in the administration of the statute, 

they are limited to the litigation of capital cases. But that, again, 

is not my experience. To be sure, capital habeas litigation conVerDate 0ct 09 2002 14:31 Apr 26, 2006 Jkt 027148 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27148.TXT SJUD4 PsN: CMORC
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sumes a hugely disproportionate share of habeas resources, and it 

is the engine that drives the development of convoluted, circuitous 

application of the habeas statute. Once these extra-statutory interpretations are developed, however, they cannot be confined to the 

capital context. 

For example, the doctrine of stay and abey, which was developed 

by the courts to deal with eve-of-execution cases, where the defendant wished to go back to State court and raise new claims without 

jeopardizing his Federal habeas corpus 1-year filing deadline. The 

Supreme Court has recently attempted to place some limitation on 

stay and abey, but now that the procedure exists, it cannot be restricted to capital cases. Any defendant, capital or non-, is free to 

engage in such stay litigation; and if he is successful, he can put 

his habeas petition on hold indefinitely while he files yet another 

appeal in State court. This will usually be at least his third appeal 

in state court, all the while holding his Federal habeas petition. 

Now, of the arguments against habeas reform perhaps the most 

ironic to me is that we do not need any more because AEDPA has 

fixed everything. The reasoning is that AEDPA, when it was originally enacted, disrupted settled law and required years for the 

courts to re-establish the status quo. Now that the statute has been 

‘‘shaken out,’’ the law is stable again, and habeas litigation will 

move along rapidly, unless new reform upsets the apple cart. 

What matters most, however, is how questions under AEDPA are 

resolved, not how long it takes to resolve them. Take, for example, 

the doctrine of equitable tolling. In AEDPA, Congress created a 1-

year filing deadline for habeas petitions, with various exceptions 

spelled out specifically in the statute. The Federal courts then decided that they could create their own exceptions that they call ‘‘equitable tolling.’’ 

Now, that equitable tolling as a general principle is well settled 

in the circuits, but it would be fiction to suggest that equitable tolling has, therefore, streamlined habeas corpus review. Just the opposite is true. There is absolutely no certainty in application of 

what was intended as a clear-cut deadline because at any moment 

the court might decide to invent a new equitable tolling exception. 

And, even worse, these new exceptions often require extensive factual inquiry in individual cases. A whole cottage industry of equitable tolling evidentiary hearings has now been born. Thus was the 

time bar transformed from a limitation on litigation into an invitation to litigate. 

AEDPA jurisprudence reveals many similar developments. In additional to stay and abey, proper filing, and equitable tolling issues, 

as I have discussed, we have seen for example, the growth of inadequacy review to undermine procedural default, the indulgence of 

excessive litigation on certificates of appealability, and the use of 

claim-splitting and other means of avoid the statutory deference requirement. 

I do not believe that Congress is stuck with these applications of 

the original habeas reform effort, and further legislation is appropriate. 

To take just one glaring example, a case that I have been working on where the crime was committed in 1981, the defendant was 

named Mumia Abu-Jamal. It is still on habeas review now. Four 

7

years ago, we filed a notice of appeal to the United States Court 

of Appeals for the Third Circuit. We still do not even have a briefing schedule in that case. We have not been allowed to file briefs, 

let alone hold arguments, let alone await a decision from the Third 

Circuit. 

Thank you. 

[The prepared statement of Mr. Eisenberg appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Eisenberg. 

Our next witness is the former Solicitor General of the United 

States, Seth Waxman, partner at the prestigious firm of Wilmer, 

Cutler; an extraordinary academic background, summa cum laude 

at Harvard, a 1977 graduate of the Yale Law School, where he was 

managing editor—mostly those credentials bring you to the Supreme Court, Mr. Waxman. I don’t know why you are here only for 

this hearing. 

[Laughter.] 

Chairman SPECTER. Has had numerous awards, they will be 

made part of the record, perhaps most notable the FBI installed 

him as a permanent honorary agent a few years back. 

I don’t know if that disqualifies you from testifying, Mr. Waxman, but on a serious note, thank you for coming in again and 

thank you for all the work you have been doing as we have been 

laboring with the first substitute and the second substitute and 

now this hearing to address all of the issues we can in the most 

forthright and direct way we can to make sure that constitutional 

rights are not abrogated. 

The floor is yours.

STATEMENT OF SETH P. WAXMAN, FORMER SOLICITOR GENERAL OF THE UNITED STATES, AND PARTNER, WILMER, 

CUTLER, PICKERING, HALE AND DORR, WASHINGTON, D.C.

Mr. WAXMAN. Thank you very much, Mr. Chairman. I am very 

grateful for the opportunity to come back. I did make a rash offer 

the last time I was here that I very much wanted to work with 

Senator Kyl and with you, Mr. Chairman, and the members of the 

staff and to get at the data and ascertain the extent to which there 

are problems in the system that AEDPA did not correct or, as I believe may be the case, there are problems in the system that 

AEDPA has introduced. And I believe I offered to charge you the 

same rate that I was charging for my testimony last time, and I 

have faithfully continued that pro bono representation. And I am 

very, very honored to be able to do it. I have met with Senator 

Kyl’s staff. I have met with your staff. I have met with Senator 

Leahy’s staff. 

There is nothing more important that I am involved in doing 

than what this Committee is all about right now. I am reminded, 

2 weeks ago I went to see that wonderful movie that is out about 

Edward Murrow, ‘‘Good Night, and Good Luck,’’ about the bravery 

of Mr. Murrow during the regrettable period of the McCarthy hearings. And what struck me most about the film was the very last 

scene—I hope I do not have this wrong—where President Eisenhower is speaking, and he says what is important about this counVerDate 0ct 09 2002 14:31 Apr 26, 2006 Jkt 027148 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27148.TXT SJUD4 PsN: CMORC
8

try, what is wonderful about this is that we have the writ of helicopter, and the writ of helicopter is there as a historic safeguard. 

And I thought immediately to the hearing that this Committee 

had and the work that I have been doing, and it is why I am looking forward to testifying and answering questions this morning. 

I will spare the previous introduction. I am not a philosophical 

opponent of the death penalty. I have recommended seeking the 

death penalty dozens of times. I have less patience with delays 

than anybody that I know, and I am fully in favor of expedited proceedings in my professional life and in my personal life. 

I think that the substitute bill that we are looking at now does 

eliminate some of the problems that I identified in my last testimony. I still think that there are provisions of this law that are 

very problematic. I don’t think in 2 minutes and 30 seconds in my 

opening statement I will be able to address them, but perhaps I 

can explicate them. 

I am most concerned about— 

Chairman SPECTER. Mr. Waxman, take the time you need. We 

will give you extra time. 

Mr. WAXMAN. I appreciate it. I am most concerned about Sections 

2, 3, 4, 5, 8, and 10. But my overriding concern with this is I think 

that this legislation in very large part represents a good-faith effort 

to address problems that have not been documented to exist in any 

systematic way, and based on my experience and looking at the 

data that I have looked at, do not, in fact, exist in any serious way. 

And I wouldn’t be as troubled by that alone as I am by the fact 

that I know that, if enacted, these provisions will deny relief and, 

indeed, will deny access to the courts to people whose fundamental 

constitutional rights have been violated, some of whom are actually 

innocent. 

Now, I will be talking a little bit about innocence in the course 

of my remarks because it is a prominent feature in a number of 

these provisions. Let me just turn first to Section 4 of the bill, 

which deals with procedural default. 

Procedural default is a doctrine that provides that even if there 

is a constitutional violation, if there was an adequate and independent State ground for the court to rule, that is sufficient, and 

Federal habeas corpus courts in an exercise of federalism don’t 

have the authority to second-guess what the highest court of the 

State has said on an adequate State ground justifies the detention. 

There was a doctrine in place for many, many years called ‘‘the 

deliberate bypass doctrine’’ that basically precluded people, prisoners, from coming to Federal court if they had deliberately bypassed their remedies in State court. In 1979, I think it was, the 

Supreme Court in a landmark decision issued by Chief Justice/then 

Justice Rehnquist, Wainwright v. Sykes, established a very, very 

high bar to overcome a procedural default—that is, an instance in 

which an adequate and independent State ground had not been 

availed. And that is the so-called cause and prejudice test. The 

cause and prejudice test of Wainwright v. Sykes is one of the most 

settled doctrines in the law, and recognize that in habeas corpus 

law there is almost nothing that is settled. It is the most esoteric—

it has become the most esoteric area of the law in existence. 

9

The cause and prejudice standard, though, is a notable exception. 

It is settled. It is very stringent, and it only allows the most extreme cases through. In my testimony, my written testimony, I give 

the example of Strickler v. Greene, a Supreme Court decision a few 

years ago where the Supreme Court found cause—that is, there 

had been an egregious—there had been a very good reason for the 

failure to bring to the State courts a meritorious constitutional 

claim, but because the Supreme Court wasn’t satisfied beyond any 

reasonable—to a reasonable degree that the constitutional error 

would have changed the death sentence, defendant’s sentence, it 

denied relief. It wasn’t enough under cause and prejudice to show 

that there was a constitutional violation, and there was very good 

cause not to have brought it to the attention of the State courts. 

But, nonetheless, he was denied relief and executed. 

Now, Section 4—I should say also that the cause and prejudice 

standard was so settled and, in my opinion, so satisfactory to both 

the community of prosecutors and, I suppose, the courts, that it 

wasn’t even considered in the context of amending AEDPA that 

any change be made in the procedural defaults rules. There wasn’t 

a procedural default provision in AEDPA because, in my experience, the procedural default standard under Wainwright v. Sykes

is so stringent that there aren’t any systematic abuses. 

Now, Section 4 of this bill does alter the cause and prejudice 

standard. It denies Federal courts, strips Federal courts of jurisdiction of any case in which a State court, rightly or wrongly, post hoc 

or otherwise, says that there was a rule of procedure that was not 

complied with, except in an instance in which you can demonstrate 

not just cause and not just that the substance of your claim is not 

only correct but, if denied, would constitute an unreasonable application of settled Supreme Court precedent, but also that you can 

prove on a going-in basis that you had no involvement in the crime 

at all, not simply that you are legally innocent of the crime of 

which you were convicted, not simply that you are legally innocent 

of any other activity in connection with the crime, but that a court, 

but for the error, would have found that you did not participate in 

any way in the underlying offense. 

Now, let me address first whether there should be a safeguard 

for the rare case in which there is an excusable procedural default. 

The last time I was here, I discussed with the Committee the case 

of Lee v. Kemna. It is described at length in my written testimony. 

The court asked all of the other members of the panel with whom 

I was sitting whether in writing they could dispute that the Supreme Court had, in fact, decided what I decided. And I do not believe that anybody did dispute it. But that was a case in which in 

the middle of a trial in which the witnesses were sequestered, 

when the defense lawyer in the middle of the day came to call his 

witnesses, he discovered that somebody—likely, the court held, a 

court official—told his witnesses, who had come all the way from 

California to, I think, Missouri, that they would not be called that 

day and they could go home. He then asked for a continuance until 

the next day so that he could obtain his subpoenaed witnesses. The 

court denied it because the court had other pressing matters. 

He took an appeal, and on appeal, the court of appeals said, well, 

that may not have been a sufficient reason, but there is a rule in 

10

this State that all motions be in writing, and his motion to continue the trial because his witnesses had gone home was not in 

writing, and that is an adequate and independent State ground. 

And a substantial majority of the Supreme Court said that that 

rule, which was applied not at the request of the prosecution at 

trial and not by the trial judge at the time, but by the court of appeals after the fact, cannot eliminate the ability to get relief in Federal court. 

Similarly, another Supreme Court case, Ford v. Georgia, the rule 

that was allegedly defaulted was announced after the alleged default took place. Amadeo v. Zant, which I also discussed in my 

written testimony, a case in which there was deliberate, despicable 

misconduct by the State prosecutor with respect to the jury pool 

that was concealed, that was not revealed until discovery many 

years later in Federal court, there was a procedural default in that 

case because the claim was not raised in State court because it had 

been concealed. I do not believe that it is consistent with the Writ 

to strip Federal courts of jurisdiction to consider cases like that. 

And I particularly think that it is inadvisable in the absence of any 

demonstration that there really is a systemic problem with the 

cause and prejudice standard. 

Now, the innocence prong of this, the innocence exception that 

this substitute legislation includes, as I said, requires that you 

show up front not only that you have a claim so meritorious that 

denying it would be unreasonable in light of settled Supreme Court 

precedent and that you had sufficient cause not to have brought it 

to—not to have complied with the State rule, but that you had no 

involvement in the underlying offense. And I want to just spend a 

minute to express my understanding of what exactly that means. 

First of all, it means that there would be no sentencing errors 

at all ever considered by a Federal court in the context of one of 

these procedural defaults, whatever caused it, and that is because 

if the constitutional error related to the sentence, that, ipso facto, 

deprives you of the ability to show that you had no involvement 

whatsoever in the underlying offense. 

Now, it may well be that we as a society have little sympathy 

for claims about whether a sentence was too long or not too long, 

or too long because of constitutional error. But a fundamental 

premise of our capital punishment system is that not everybody 

who is guilty of a crime deserves to be executed. We have a whole 

edifice that the Supreme Court has said the Constitution requires 

to separate out among those premeditated murderers those who 

are, as the court has said, ‘‘the worst of the worst.’’ And yet there 

would be no sentencing claims allowed under Section 4 because you 

need as a threshold matter to prove that you had no involvement 

in the conduct that formed the basis of the crime. 

A good example would be, let’s say, the prosecution seeks the 

death penalty against somebody under Edmonds v. Florida because 

they were the trigger man of a cold-blooded murderer. And Edmonds says that if you are actually the trigger man, you can get 

the death penalty. 

Well, let’s assume that there is egregious Brady violation that is 

discovered, as was the case in Banks v. Dretke, decided by the Supreme Court 2 years ago, in Federal court because the evidence 

11

had been concealed by the prosecutor in State court, which did not 

order discovery. So you come to Federal court, you are in Federal 

court, and you say, look, there is irrefutable evidence that was in 

the prosecutor’s file that I did not pull the trigger, but you cannot 

prove that, consistent with principles of felony murder, that you either were not there or out in the getaway car or something like 

that, you cannot get that—you cannot get in the door. The Federal 

court does not have jurisdiction to consider that claim. 

Now, let’s look at guilt/innocence, which is, you know, after all, 

the main event here. Innocence claims do not arrive in Federal 

court as fully formed claims of actual innocence. What happens is 

that the fear here is and what habeas corpus protects is instances 

in which there is something fundamentally unfair, not just somewhat unfair but constitutionally unfair in the procedures that took 

place. There are instances, there are many instances in which as 

a result of those fundamentally unfair procedures, innocent people 

are convicted even though they do not have fully formed proof of 

their innocence at the outset. 

There are many, many instances in which in Federal habeas corpus and in State habeas corpus prisoners prevail on claims of fundamental constitutional violations and are thereafter, when the 

violation is corrected, acquitted or exonerated. There was a report 

in yesterday’s newspaper about a case in Philadelphia in which 

this happened. But looking at reported cases, Kyles v. Whitley, which I mentioned in my testimony, there was—in Federal court 

it was discovered that there was an egregious Brady violation with 

respect to the testimony of the prosecution’s main witness. The 

writ was granted. He was retried. Three times the prosecution 

failed to obtain a conviction when— 

Chairman SPECTER. Mr. Waxman, how much longer do you 

think? 

Mr. WAXMAN. I can be shut off at any time, Mr. Chairman. 

Chairman SPECTER. No, I do not want to. I think what you said 

is very informative, and you are still on Section 4. 

[Laughter.] 

Mr. WAXMAN. I want to go back to Section 2 and 3. 

Chairman SPECTER. Well, I think you made a pretty good case 

as to Section 4, and I would urge you to move to a new section. 

But you spent a lot of time with staff and you have a lot to say, 

and I think we want to hear it. 

Senator LEAHY. Mr. Chairman? 

Chairman SPECTER. But we want to get some idea as to how long 

it will take. 

Senator LEAHY. Mr. Chairman, I just wonder, if I might, as I am 

listening to this, I reread my statement, and I think the Senator 

from Arizona makes a good point. This is probably going to ruin 

his reputation back home if he finds out that I might agree with 

him on something. I would change my sentence to read—and ask 

consent to change it in the statement so that the statement reads, 

‘‘This bill remains a solution to an unproven and largely non-existent problem, and no amount of tinkering would solve that’’—which 

is my feeling. I would strike the words ‘‘crude and partisan.’’ The 

Senator from Arizona is correct. 

Senator KYL. I appreciate it. 

12

Chairman SPECTER. Thank you for that, Senator Leahy. 

Mr. WAXMAN. Mr. Chairman, I will just take a few minutes on 

each of the remaining sections, and I invite questions. I am really 

only here to answer the Committee’s questions, not to make a 

stump speech, and I realize that— 

Chairman SPECTER. It is not a stump speech. It is very profound, 

and you are obviously very knowledgeable, and it is very helpful. 

Senator LEAHY. Trust me, we know stump speeches up here. 

[Laughter.] 

Mr. WAXMAN. My daughter was very fond of saying, before she 

went off to be an undergraduate at the University of Pennsylvania, 

her stump speech was that there is nothing more dangerous in this 

country than her father in front of a microphone without a red 

light. 

[Laughter.] 

Mr. WAXMAN. Which is what they have in the Supreme Court 

that tells you to stop. I was, you know, very respectful of the timer 

in front of me until the Chair gave me permission that he probably 

did not realize would have such a dramatic effect. But let me just 

trip through my objections on—my concerns about the other provisions. 

Chairman SPECTER. Go ahead. 

Mr. WAXMAN. And then solicit questions. 

Much of what I had to say about Section 4 on procedural default 

is also the case for Section 2 on exhaustion of mixed petitions. In 

my written testimony, I went through how the exhaustion doctrine 

is one of timing and not one of extinction or not one of preclusion, 

but this exhaustion remedy does change that. 

In a perfect world, all constitutional claims would be raised in 

State courts before they go to Federal court. That is the comity rule 

that the exhaustion doctrine respects. And in very large part, the 

existing doctrines with respect to requirements for exhaustion and 

the requirement that mixed petitions be dismissed has enforced 

that rule, but we do not live in a perfect world. We have to have 

a failsafe for those instances in which there is a darn good reason 

why there has not previously been exhaustion. 

We have a world in which many, many, many, many, many prisoners appear pro se. Many of them who do not appear pro se have 

lawyers that can only be charitably called incompetent. We have 

instances—Brian Stevenson was here last time talking about instances in which State courts on post-conviction have refused to 

rule for years and decades. And we have instances, regrettable but 

documented, in which an errant prosecutor will stonewall legitimate discovery requests, the State court will not order it, and like 

in Banks v. Dretke, the information only comes out in Federal 

court. 

And there are plenty of instances—Mr. Eisenberg talked about 

stay and abey and how it is abused. Well, first of all, the Supreme 

Court just decided a case this year, Rhines v. Weber, that puts very 

stringent restrictions on the ability to go back and exhaust 

unexhausted claims. And we have not seen—there is no reason to 

think that that will not solve whatever problem exists. But more 

to the point, there are many instances in which it is the State, not 

the defense, that in the instance of an unexhausted claim, with 

13

good cause, the State refuses to waive and insists that the prisoner 

go back into State court and exhaust. And in Pennsylvania itself, 

the case of Aaron Jones, which Mr. Dolgenos testified about last 

week at the House Judiciary Committee hearing, and the Brinson

case, which I can discuss in detail and I am sure Mr. Eisenberg is 

familiar with, are instances in which, in one case a Brady violation, 

in another a Batson violation, came to light while in Federal court. 

The defense in the Jones case by defense counsel and in the 

Brinson case by a pro se prisoner implored the prosecution and the 

Federal court not to send them back to what the prisoner in 

Brinson called ‘‘the morass’’ of the State post-conviction proceedings, but just address the merits. And in both instances, it was 

the prosecution that insisted on stay and abey so that there would 

be exhaustion. 

But, in short, I don’t think that there is, particularly in light of 

Rhines v. Weber, a significant problem or a problem of any dimensions at all with abuse of the existing law on the exhaustion requirement on mixed petitions, and all of the things that I said 

about the no-involvement standard of innocence, proof requirement 

up front, also apply here. 

Chairman SPECTER. Mr. Waxman, are the other sections covered 

in your written statement? 

Mr. WAXMAN. Yes, they are. 

Chairman SPECTER. I think we will move on then. Thank you 

very much for that. 

[The prepared statement of Mr. Waxman appears as a submission for the record.] 

Chairman SPECTER. We are going to come back to you, Mr. 

Eisenberg, before questions to give you a chance to offer any comments or rebuttal to what Mr. Waxman has said. 

Our next witness is Judge Howard McKibben from the District 

of Nevada, appointed to the Federal bench in 1984, had served on 

the State court for 7 years before that, was a district attorney, a 

very outstanding academic record. 

Thank you very much for joining us, Judge McKibben, to testify 

on behalf of the Judicial Conference.

STATEMENT OF HOWARD D. MCKIBBEN, SENIOR UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, 

AND CHAIRMAN, COMMITTEE ON FEDERAL-STATE JURISDICTION, JUDICIAL CONFERENCE OF THE UNITED STATES, 

RENO, NEVADA

Judge MCKIBBEN. Thank you very much, Mr. Chairman, Senator 

Leahy, and members of the Judiciary Committee. It is always a little daunting to go after someone like Seth Waxman. I must say, 

in court I am always delighted to have attorneys like Mr. Waxman 

appear. It makes the judge’s job a lot easier when they can articulate issues as clearly and concisely as he does, and so I am delighted to join this panel. 

I will make my remarks brief, and I would ask that a copy, Mr. 

Chairman, of my remarks be made a part of the record. 

The Judicial Conference Committee on Federal-State Jurisdiction, which I chair, is one of the few committees of the Judicial 

Conference that includes State court judges as members. We have 

14

four chief justices of the supreme courts on our committee, and 

they have provided substantial input in connection with the issues 

that have been raised in the bill that is before you. 

Our Committee serves as a conduit for communication of matters 

of mutual concern between the Federal and State courts, and I 

have a special affinity for State courts, having formerly been a 

State trial judge and a State prosecutor. 

Let me say to the members of the Committee, the judiciary hears 

your concerns about delay in processing some habeas cases in the 

Federal courts. We support the elimination of any unwarranted 

delays in the fair resolution of habeas cases by State prisoners in 

the Federal courts. And, Senator Kyl, I know that you have provided the Committee with information that shows that some cases, 

capital cases, have been pending in the Federal courts for a significant period of time. Our preliminary statistical data—and we have 

requested that—does not appear to show a significant delay in the 

processing of non-capital cases. The information with respect to 

capital cases is, at this point, what I would call inconclusive and 

does, in fact, suggest the need for further analysis. 

As you know, the Judicial Conference has urged in previous communications to this Committee that a careful analysis be undertaken to determine if, in fact, there is any unwarranted delay and, 

if so, the causes of such delay before Congress further amends the 

habeas corpus statute. And I would indicate that it is very difficult—having handled capital cases and non-capital cases over the 

years I have been on the Federal bench—it is very difficult to take 

the statistics and look at them and say it took X number of months 

or X number of years to resolve this case and know what actually 

happened in the case as to whether or not what, in fact, happened 

was reasonable. Was it a reasonable period of time? Were there 

reasons for the delay and the ultimate disposition of the case? And 

that requires a fairly systematic review of those cases to make that 

determination. 

Second, the Judicial Conference opposes provisions in the 

Streamlined Procedures Act that would shift from the Federal 

courts to the Attorney General the decision for determining whether a State has met the requirements to opt in to the provisions of 

Chapter 154, those provisions that would impose specific time 

deadlines on the courts of appeals for deciding habeas petitions, 

those provisions that would change the procedures by which the 

Federal courts consider applications for expert services, and those 

provisions that would apply the provisions of AEDPA and the 

Streamlined Procedures Act retroactively. 

Third, with respect to limiting Federal court review of habeas 

claims, in September of this year, as you will recall, the Conference 

expressed its opposition to certain provisions of S. 1088, as adopted 

by the Senate Judiciary Committee in July, that have the potential 

to undermine the traditional role of the Federal courts to hear and 

decide constitutional claims, with appropriate deference to State 

court proceedings, and to prevent the Federal courts from reaching 

the merits of habeas corpus petitions by adding procedural requirements that would complicate the resolution of those cases and, in 

the opinion of the Conference, lead to protracted litigation. 

15

We recognize that this Committee has continued to make 

changes in the legislation through the adoption of a second substitute amendment in October. We are, however, concerned that 

the legislation may still limit Federal court review of meritorious 

constitutional claims inappropriately. 

Fourth, the October substitute recasts the cause and prejudice 

standard defined and developed by the Supreme Court—and as Mr. 

Waxman has eloquently indicated to you, that is an extremely wellsettled doctrine in our jurisprudence, which we rely on all the time. 

And that has been in existence, I think for about 27 years, 28 

years. And it recasts the cause and prejudice standard in mixed petitions, procedurally defaulted claims, and amendments to claims 

in a manner that we have not seen before. These revised standards 

have never before applied in this manner. They create complexity 

and could further delay, not expedite, the resolution of Federal 

claims. And I think that is an important point. Complying with 

such standards may be even more problematic in cases where the 

applicant did not have counsel in the State post-conviction proceeding. 

Now, the October substitute would redefine prejudice, as we understand it, as a ‘‘reasonable probability’’ that, but for the alleged 

error, the fact finder would not have found that the applicant ‘‘participated in the underlying offense.’’ The reference to the underlying offense changes the focus of the traditional role of habeas 

from whether an error infected the entire trial, with error of constitutional dimension—and not every error clearly would be cognizable, but those that infect the entire trial with error of constitutional dimension are—to whether the error would cast doubt on the 

claimant’s participation in the underlying offense; not just if the individual is guilty of the underlying offense. Constitutional errors 

that affect whether a person should be sentenced to death may not 

be reviewable under such a standard because such errors may have 

no bearing whatsoever on whether the applicant participated in the 

underlying offense. 

There is a similar concern with the modification of the actual innocence standard. As with the revised cause and prejudice standard, this provision could foreclose review of sentencing errors, and 

it appears that it would and, thus, is inconsistent with Conference 

policy. 

Fifth, the October substitute takes the restrictive standards of 

Section 2254(e)(2) and for the first time, as we understand it, uses 

them to limit a person’s access to Federal court review of 

unexhausted and procedurally defaulted claims and amendments to 

petitions in capital cases under Chapter 154. 

And, finally, AEDPA already sets a very high bar when Federal 

courts consider claims that a habeas petitioner failed to raise in 

State court, and, as such, appropriately recognizes the deference 

that Federal courts should give to State court proceedings. In just 

the past 3 years, the Supreme Court has considered over 19 cases 

addressing issues raised by the passage of AEDPA, and that is a 

very large number of cases for the Supreme Court to consider and 

decide. Nine of those decisions were handed down this past year. 

Only now is the law becoming somewhat settled with respect to 

AEDPA. If Congress substantially revises the procedures in habeas 

16

corpus cases, there is a concern that it most certainly would invite 

a new round of litigation on statutory and constitutional issues, 

complicating and protracting, not expediting, we believe, the consideration of habeas petitions in Federal courts. 

In closing, Mr. Chairman, I thank you for the invitation to address the Committee. I know that the members of the Committee 

and the judiciary share a common goal to preserve and protect the 

fundamental fairness and integrity of our criminal justice system. 

I thank you very much for your time. 

[The prepared statement of Judge McKibben appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge McKibben. 

Mr. Eisenberg, would you care to offer some additional comments 

at this time in response to what either Mr. Waxman or Judge 

McKibben said. 

Mr. EISENBERG. Thank you, Mr. Chairman. Just a couple of 

points, if I may. 

The argument is made that the existing cause and prejudice 

standard for procedural default is so settled and so satisfactory 

that Congress did not even consider a need to address the issue 

when it passed AEDPA. And it is true that AEDPA does not address that issue. 

The problem is what has happened since AEDPA. Since AEDPA 

tightened up on other aspects of habeas review, cause and prejudice and procedural default has been used as a means of essentially 

circumventing those limitations. 

Now, as to the cause and prejudice standard itself, our problem 

is that we cannot even get to it in some many cases because the 

doctrines in habeas corpus allow the Federal court first to decide 

under the label of ‘‘adequate and independent’’ whether the State 

court rule should be given any effect at all in Federal court. And 

unless and until you pass that threshold, the court in Federal habeas review does not even have to consider cause and prejudice. So 

that is our initial roadblock and one of the main things that the 

current legislation addresses, is the power of the Federal court to 

simply throw out the State procedural rule without any reference 

to cause and prejudice, to simply say it does not count. And when 

the court says that, it is not just for that case. It is for all cases 

to which that rule might apply. 

We have in Pennsylvania, for example, enacted a post-conviction 

review statute that had some similar provisions to the AEDPA. We 

did it around the same time, guided in part by the provisions in 

AEDPA, and we imposed a 1-year deadline for filing State post-conviction petitions. We made it clear at the beginning of the statute 

that it applied to all cases, capital and non-capital cases. 

The Third Circuit has held that that statute was not an adequate 

ground for finding petitions filed more than a year to be untimely, 

and the reason it was not is because the statute did not specifically—the courts had not yet said whether that statute really 

meant what it said or whether the courts might create exceptions 

to the statute along the lines of some of their previous court-made 

doctrine. 

So even a statute whose words were not in any way in dispute, 

whose words were clear on their face—there was no dispute from 

17

the Federal court about the clarity of the language or the consistency of the application, once the issue reached the State courts, 

even that statute was not considered to be an adequate ground for 

a default because the Federal court said, well, there was all this 

time before the State courts first started interpreting it, and, yes, 

once they did, they applied it exactly as it was written, and they 

have consistently done so ever since; but, hey, how were we supposed to know what they would do until they addressed it? 

And so no procedural default there for an entire class of cases. 

All capital cases for several years—we do not know how many 

yet—for several years after the statute was passed, which were defaulted in State court because they were found untimely, are now 

being allowed review in Federal court, which will mean complete 

review, no deference standard to the decisions in State court because the State courts did not reach the merits. They applied their 

statute and found those cases time-barred. The Federal court is 

now going to get to review those cases despite the default. 

Now, when we get there and they apply that default, of course, 

it is going to apply to all sorts of claims. The argument has been 

made that the new statute will limit cause and prejudice to prejudice going to the underlying offense. Well, that is the argument 

that we keep hearing about the need for expansive Federal habeas 

corpus review, that we have to protect innocence. And, clearly, this 

standard does so. 

But let’s keep in mind when it comes to considering limitations 

to the cause and prejudice standard and the innocence provision of 

those exceptions that we are talking about cases that were supposed to be defaulted to begin with. We are not saying that you 

cannot raise constitutional violations in Federal court. We are saying you have to follow the rules to do so. And the question in this 

area is the breadth of the exceptions that we will make if you do 

not follow the rules. 

The argument essentially is being made that we cannot limit 

those exceptions, that even if you default your claims in State 

court, even if you try to get into Federal court through one of these 

exceptions, you should have essentially as broad review as if you 

had not defaulted your claim in State court. And that is not going 

to ensure any sort of compliance with the procedural rules that the 

habeas corpus statute establishes and that the courts have been 

developing for decades, even before AEDPA was passed. 

There have to be narrower standards for the consideration of 

claims that are not really properly before the Federal court at all 

than for those claims that are in order to hope for any sort of compliance by the petitioner in State court with the rules that we are 

entitled to apply. The Federal courts have their procedural rules, 

we have our procedural rules, and they are entitled to deference in 

Federal court as well. And I think that that is what the case law 

and what this legislation tried to establish. 

Let me speak very quickly to the Rhines point because I think 

that is a significant one, the recent case concerning stay and abey. 

The Supreme Court, because it is a court and not a legislature, 

established in Rhines exactly the kind of amorphous judicial standard that invites rather than limits further litigation. The lower 

courts are now going to have to go back and look at what Rhines

18

said and they are going to have to decide, well, what is good cause 

in a particular case, what are the underlying merits of the claim, 

and a whole body of case law will be developed, and even once it 

is developed, there will still be litigation about the application of 

those amorphous standards to the facts of individual cases. That is 

exactly the kind of problem that we are talking about, is the existence of these kinds of generalized standards that require years, add 

on years to the process of litigating these claims. 

I would like to look in that respect at the bottom line with reference to the statistics that Judge McKibben mentioned from the 

Administrative Office of United States Courts. He referred to statistics that I believe are mentioned on pages 2 and 3 of the attachment to the letter that was filed with the Committee by the Judicial Conference in September of this year, and those statistics 

shows that over the last 6 years, the time to dispose of a capital 

case on Federal habeas corpus review has increased—increased—

by 50 percent just over the last 6 years, and it has nearly doubled 

in the district courts. The time from filing to disposition in the district courts went from 13 months in 1998 to 25.3 months in 2004, 

and the time from filing of the notice of appeal to disposition of a 

capital appeal in the Federal courts of appeal went from 10 months 

in 1998 to 15 months in the year 2004. 

Now, I cannot vouch for the accuracy of those statistics, but I can 

certainly tell you that they are consistent with my experience and 

with the experience of my colleagues and that they show that the 

problem is not getting better as the result of AEDPA, as Congress 

intended. It is getting worse. 

The statistics also refer to delays in non-capital cases, and the 

point is made that according to those statistics, the disposition 

rates for non-capital cases have not increased in the way that they 

have for capital cases. What those statistics also show, however, is 

that the disposition rates for non-capital cases have not decreased 

despite AEDPA, despite the reforms that Congress put in place 10 

years ago, there has been no movement, even in the disposition 

rates for non-capital cases. 

Now, AEDPA was supposed to help speed things up. Significant 

new provisions like the time bar, if fairly applied I think, should 

have reduced disposition times even for non-capital cases— 

Chairman SPECTER. Mr. Eisenberg, how much more time do you 

think you need on this round? 

Mr. EISENBERG. Thank you for the opportunity, your honor, and 

that would be my last sentence. That times are increasing for capital cases, not decreasing for non-capital cases. 

Chairman SPECTER. Thank you very much. I am going to yield 

my opening round of questions. Senators have 5 minutes to question. I am going to yield my opening round of questions to Judge 

Kyl, and then we will come to Judge Leahy for 5 minutes, and then 

we will go back to Judge Kyl for five minutes. 

[Laughter.] 

Senator Kyl.

STATEMENT OF HON. JON KYL A U.S. SENATOR FROM THE 

STATE OF ARIZONA

Senator KYL. Thank you, Mr. Chairman. I am still enough—

19

Chairman SPECTER. I am just trying to promote you a little.

Senator KYL. Yes, and I appreciate that. I am still enough in awe 

of judges, I begin by, ‘‘May it please the Court.’’

I want to begin by saying thank you, Mr. Chairman, for holding 

this hearing and for all of your cooperation and your staff’s significant cooperation as well. They have spent hundreds of hours on 

this.

To all three witnesses, very much appreciate your being here, 

and particularly, Mr. Waxman, with I suspect what you charge per 

hour. I was moved by your point at the beginning of your testimony 

that this is important work and you are willing to devote your 

abilities to this work. I appreciate that very much. For somebody 

like Mr. Eisenberg on the front lines of this battle to relate to us 

the kind of experience that you have I think is very, very important 

to our deliberations.

Obviously, we have started a great debate here and I think it is 

a debate worth having. I think the fact that the debate has occurred has made the legislation better. I still think we have a problem to address, and in the relatively brief period of time that I 

have, I would like to begin with that, but preliminarily to make 

this general observation. It seems to me that what we have started 

here is a debate about those on one side who are really reluctant 

in any way to reduce the potential impact of a habeas petition on 

the one hand, and those on the other hand, Mr. Eisenberg, represented by what you characterized as your bottom line here, which 

is that because of the delays and the difficulties in dealing with all 

of these habeas positions, there has to be a difference between 

those cases in which the procedural rules in the State courts have 

been complied with and those that have not, and if that is the intent of our legislation here, to draw that distinction and try to 

speed that process. We had tried to do it in AEDPA, and I think 

the point is that with respect to capital cases at least the situation 

has gotten a lot worse. That is really what I would like to begin 

with and then ask for your comments.

We have adduced evidence in previous hearings and in written 

submissions that relate nationally, but I just wanted to have you 

consider what the Arizona Attorney General’s Office came up with 

since our last hearing. These are primarily capital case statistics, 

so they relate to our most serious issues.

The Arizona study examined the appeals of all of the prisoners 

currently on death row, over 100. There are 76 capital cases pending in Federal Court, which represents over two-thirds of Arizona’s 

pending capital cases. And although some were filed recently, over 

half of the cases have been pending in Federal Court 5 years or 

more. This is in Federal Court now. Of those, 13 cases have been 

pending for 7 years; 10 cases have been pending for 8 years; five 

cases have been pending for more than 15 years. I suspect that all 

of you would agree that that is far too long, that that suggests that 

something has to be done, not only for the citizens who have to pay 

for all of this, and the judges whose time it takes up, the prosecutors who are dealing with it, but also the victims.

The study of the Arizona Attorney General’s Office further found 

that only one of the 63 Arizona death penalty cases filed under the 

20

AEDPA standards has moved from Federal District Court to the 

Ninth Circuit, only one. That case has been in the Ninth Circuit 

for over 5 years. 28 of Arizona’s capital cases have been pending 

in District Court for between six and 8 years. One of the Arizona 

death penalty cases has been on Federal habeas review for over 19 

years. There is no justification for that. Two of the cases for over 

18 years, one for over 16, one for over 14, another for over 12. 

Clearly there is a problem, so I think we have to decide how are 

we going to try to address the problem.

Now, AEDPA tried to set up a method by which States, if they 

provide a lot of resources and good counsel, could presumably get 

around one of the issues which was the lack of good counsel, and 

therefore, could be held to a higher standard, and to compliance 

with State procedural rules. I would appreciate your views as to 

whether that general approach is generally a good approach? Is 

that an approach worth working on?

Mr. Waxman, in that context, I think you may have misspoken 

slightly. You said that AEDPA did not seek to change Wainwright

because it is so subtle, but in fact, Section 154 does adopt a more 

stringent test, does it not? In other words, that is what we are trying to get at, is if you really provide good counsel and other resources, then we are entitled to provide some limitations, some 

speedier access to the courts.

I will just ask all of you to comment on what I have said here 

since I am done with this first 5-minute presentation. Please, all 

of you take a crack at what I have just said, which will enable you 

to also talk about anything else you probably wanted to talk about, 

starting, Judge McKibben, with you, and then Mr. Waxman and 

Mr. Eisenberg.

Judge MCKIBBEN. Thank you, Senator Kyl. I appreciate the concern that you have expressed about the cases in Arizona. I know 

that there are cases in other districts where they have been on the 

dockets for a substantial period of time. This bill, as I understand 

it, addresses all habeas, capital and non-capital cases. As I indicated earlier—and the Conferences looked at this—there is no indication in the non-capital cases that there is any significant delay. 

I have heard Mr. Eisenberg refer to the fact that there should be 

a decrease, perhaps since AEDPA, in the time on non-capital cases 

for disposition, but an average 6-month turnaround time on noncapital cases is about as short a time as you are going to have in 

the Federal Court from the time of a filing. If the case is one where 

counsel will be assigned, to have the State come in, usually with 

some continuances and request an additional period of time to file 

a response, and for the Court then, if there is any discovery—normally you would not have discovery—but if there is some discovery, 

to dispose of a case like that on average in 6 months is even a faster disposition of the case than you would have in virtually all of 

your other civil cases.

So it does not appear, when we look at the statistics, that there 

is any problem with respect to the timely disposition of cases when 

they are non-capital cases. And yet this bill applies to the non-capital cases too and sets some very severe restrictions on how a noncapital defendant is able to secure any relief, even in the sentencing area. Certainly if there are substantial problems in the 

21

trial process or selection of juries, then not being able to enter the 

Federal Court unless you meet this very high standard of showing 

that the factfinder would not have found the defendant participated 

in the underlying offense is a significant problem.

Putting that aside and addressing the capital cases, the preliminary data that we have suggests, at least in some districts in the 

country, that there should be a systematic analysis of what caused 

delay. You cited one case that lasted for around 18 years without 

being disposed of. I do not know what the facts or circumstances 

of that case are. It would have to be analyzed. I know there are 

cases where people have been determined to be incompetent. That 

case remains on the court docket. It is not a closed file until there 

is ultimately a disposition, and you would not have a disposition 

if the individual is incompetent. I have no way of knowing if that 

is that particular case, but there are reasons why cases can remain 

on the docket a relatively long period of time. The Conference is 

recommending—and I think it is a prudent recommendation—that 

there be a study to determine whether there are systemic problems 

in our system or if there are some isolated cases which require better case management by the judge that handles the case.

That basically, Senator Kyl, would be my response to the question. Until that study is undertaken and the facts are determined 

on an individual basis in those cases—and I think we can isolate 

those cases, whether they amount to 100 cases throughout the 

country or whatever, and closely analyze them and see the reasons 

for the delays—we can’t draw any conclusions. Many of those 

delays are as a result of the case going back to State court for exhaustion.

Senator KYL. Mr. Chairman, since I have the next round, and I 

do want you to go ahead and run the clock and so on so I do not 

take too much time, but could I do a quick followup just on that 

last point?

Chairman SPECTER. Certainly.

Senator KYL. Our bill sets only two limits. One is a 300-day limit 

on issuing Court of Appeals opinion after briefing is done, and then 

a 90-day period to rule on a petition for rehearing in the Court of 

Appeals. Are those periods unreasonable in your view?

Judge MCKIBBEN. The Conference has consistently taken a position that time limits should not be established.

Senator KYL. So no time limit would be reasonable then.

Judge MCKIBBEN. I would not say that no time limit is reasonable. In the statute you already have provisions for expeditious 

consideration of habeas cases, and the court obviously considers 

those to be important cases.

Senator KYL. Thanks.

Mr. Waxman.

Mr. WAXMAN. Thank you very much, Senator Kyl.

I have never seen, or for that matter heard of the Arizona study. 

The statistics you cited were quite interesting, and on their face 

quite perplexing and troubling. For me the question that I really 

have is, why? What is it that is causing these cases to lag in State 

courts or in Federal courts, both the trial courts or the appellate 

courts.

22

Senator KYL. Excuse me. By the way, I will get that written 

study to all of you so you can take a look at it.

Mr. WAXMAN. Very much appreciated. But I want to make a couple of points. First of all, the statute of limitations provision that 

AEDPA introduced, and Mr. Eisenberg referred to, and most of the 

provisions of the law that we are considering now, Section 2 and 

Section 4, for example, do not deal with how long cases pend in 

State courts or Federal courts. They talk about what claims Federal courts will be able to hear and how soon you have to get to 

Federal court, but they do not address the problem of lapses of 

time either in State court and Federal court, and you could have—

and some partisans on each side have engaged in sort of a tit-fortat debate about, well, you know, there is one State court case 

where there is a totally innocent guy and the State court has refused to rule for two decades. Brian Stevenson had some of them. 

There are other cases where we have heard about a Third Circuit 

case—I have forgotten the case, Abu somebody or other—where the 

Third Circuit just has not ruled in—there is not even a briefing 

schedule.

We have a very large system and there are always going to be 

cases where delays are perplexing and inexcusable. The question is, 

is there a systemic problem, and if so, what is it? Now, if the problem is lapses of time in State or Federal courts, that ought to be 

addressed. It ought to be addressed either with rigid limits or with 

some sort of flexible limits or presumptions to get the courts to give 

the kind of priority that the Congress concludes these cases should 

have, with a reporting requirement to the Administrative Office if 

it is not decided, or to the Chief Judge, or something like that. But 

rules about procedural default and exhaustion and things of that 

nature do not address at all how long things take in court. In fact, 

they extend the amount of time that things take in court.

I mean you have now provisions in this law that—I will go to the 

question of what the study shows about the length of time that Mr. 

Eisenberg was referring to. As Judge McKibben has explained, just 

in the last few years the Supreme Court has decided 19 cases interpreting resolving interpretive difficulties in AEDPA. While each 

one of those cases was proceeding, the lower Federal courts basically held their cases. The supreme courts granted cert on a question about what this language means and does not mean, and for 

the most part, those cases sat in the lower Federal courts until the 

Supreme Court decided it.

So the period of time that the Administrative Office studied was 

a period in which there were almost two dozen provisions of 

AEDPA that were being—whose meaning was filtering its way 

through the Federal courts and was being resolved by the Supreme 

Court. I could go through this proposed legislation and identify 

phrases or tests or standards that are applied, for example, you 

know, under Section 5. The tolling provision relates to a properly 

filed State court petition.

I do not mean to be a cynic, but I am rapidly approaching you 

54th birthday and I have been in the practice of law a long time. 

There will be enormous litigation over the application of that new 

standard, a properly filed petition, to the facts of dozens and dozens of cases. And as sure as the sun sets in the west, there will 

23

be conflicting interpretations. It will go up eventually to the Supreme Court, and dozens and dozens and dozens of cases will be 

held up while the interpretive process of this body of the Congress’s 

latest effort to inject new standards into an already complicated 

area gets resolved.

I think that it is, Senator Kyl, with respect to counsel, I said before—and I know you are not only fishing for compliments for your 

State, but I think Arizona is the one State that has made a serious 

effort to comply with Chapter 154. It may have taken longer than 

it should have. The Ninth Circuit may or may not have been right 

in denying application of the benefits of that regime in the actual 

case in which it decided that the State had qualified. But what I 

find very telling is that Arizona really does stand alone. There really is no other State that has tried to avail itself of the Chapter 154 

procedures. There were a couple of States early on which basically 

said, we either have counsel or we would like to have counsel, 

please allow us in, and those were plainly non-meritorious claims.

The next closest State, it happens geographically, is Senator 

Feinstein’s State, California. California instituted a mechanism. It 

tried to get this adjudicated. It tried to qualify through by means 

of a suit under Section 1983. It went all the way to the Supreme 

Court of the United States, which about 10 years ago said, ‘‘No, no. 

This has to happen in habeas.’’ Since that time I am not aware of 

any effort by the State of California to improve its standards or to 

even raise this issue again. I am not criticizing California. California is the next best example, but I think before tinkering with 

Section 154, which I think was a good idea, I think that the Senate 

ought to look at why it is that States are not trying to do it.

I suspect that what the data will show are that it is for either 

one or both of the following reasons: either because the existing 

doctrine, as narrowed by the Supreme Court prior to AEDPA and 

as changed by AEDPA, has proven by and large so satisfactory to 

prosecutors, that there is not really any great compelling—there is 

no felt need to try and qualify for the even stricter standards under 

Section 154, and there are many States in this union for whom 

qualification under 154 would be an amazing sea change, States 

where there is no system of indigent defense period, let alone in 

post conviction, and the steps that would be required to qualify 

seem like a bridge too far.

So I certainly supported at the time and continue to support the 

principle that more stringent standards apply under Section 154 to 

States that actually provide competent counsel, but I do not think 

that it would be wise or that we have any data on which to tinker 

with Section 154, because thus far only one State has sought to 

comply, it has now been certified, and we do not really have—

enough time has passed to know exactly how the Ninth Circuit in 

particular will treat Arizona now that it has in fact complied.

Judge MCKIBBEN. This is an important issue and I do not know 

if I could have just two minutes to followup on the opt-in provisions 

under 154, Mr. Chairman.

Chairman SPECTER. Please go ahead, Judge McKibben.

Judge MCKIBBEN. I did secure yesterday some preliminary statistics in this area because I was trying to determine what other 

24

States have taken the major steps that Arizona has, as Seth Waxman has already indicated, which I think are substantial. Not 

many States have done that and come as close I think as you can 

come to qualifying in the Spears decision and probably will in the 

future. But it appears that there have been five States that have 

reasserted their entitlement to opt in to 154, and Arizona is one of 

them, and Maryland, Ohio, Florida and Mississippi. There have 

been 12 States that have been denied certification, but they have 

never reapplied for certification since the denial, and 19 States 

have not ever applied for certification or opt-in under 154.

That would seem to suggest that the mechanism for opting in 

under 154 is one that the States are aware of, but by and large the 

States have not certainly made the effort that Arizona has to attempt to opt in.

I think it is something that the Committee should study long and 

hard before making the decision to shift the responsibility for making the decision whether or not the State qualifies for opt-in status 

from the courts to the Attorney General as suggested in the statutory provisions. When the Powell Committee adopted the report 

through the Conference, there was certainly a role for the Federal 

courts to play at that time, and I do not think there is any empirical data to suggest that the procedure has not been appropriately 

considered by the courts in resolving whether or not a State has 

appropriately opted in. In fact, in the Arizona case it was conceded 

that they had not complied strictly with the provisions, and the 

question was whether the Ninth Circuit properly determined that 

that should be waived.

Senator FEINSTEIN. Mr. Chairman, on this point, because I have 

to leave, something has just been brought to my attention about 

California. Might I just mention it to the panel and see if the know 

about it?

Chairman SPECTER. Yes, you may, Senator Feinstein. And I 

know the sequence is unusual and causing concerns all around. So 

I am going to ask the panel to be very brief in responses so we can 

move to Senator Leahy and the other members.

Senator FEINSTEIN. And I will try and be very brief.

It is my understanding that there is now a joint task force between the Ninth Circuit and the State of California that is trying 

to address these issues, and that a disproportionate number of capital habeas cases involving delays in over a decade come from California. What I am told is that all habeas cases are automatically 

heard by the California Supreme Court. However, due to the volume of cases before it, the Court does not have time to grant hearings, and generally issues what is called a ‘‘postcard denial.’’ Consequently, when cases are appealed to the Federal Court there is 

no record to rely on, and the judges have to start over from scratch, 

causing delays and often requiring hearings at that point, which 

take additional time.

Is this in fact correct to the best of your knowledge? Would that 

account for the problem in these capital habeas cases from my 

State?

Judge MCKIBBEN. Well, from speaking with my colleagues in 

California and particularly in the Central District, the Northern 

25

District and the Eastern District, where they have the great volume of those cases, there is every indication that when the case is 

filed in Federal court that a great deal of the record may have to 

be developed in the Federal court, and that is extremely time-consuming if those matters are not fleshed out by the California Supreme Court.

Now, whether or not there is an intermediate Court of Appeals 

that resolves some of those issues, I cannot say because I am not 

that familiar with the California practice.

Senator FEINSTEIN. Because I do not know whether the long 

cases that Senator Kyl is referring to are essentially California 

cases, the 20-year case, but there should not be any excuse for that 

in my view. And if these are the postcard denials that then do not 

have a record, and then go to Federal court, and then the whole 

thing has to start again because the State court is not doing what 

it should, we should know that and correct it.

Judge MCKIBBEN. Having the records in Federal court—you 

know, as a judge, it is extremely important to have that record and 

have it early. We have a case in Nevada—and it is partly out of 

California—in which the record is over 400,000 pages.

Senator FEINSTEIN. If anybody has anything to add to that. But 

I am going to look into that one aspect with the California Court, 

Mr. Chairman, because this is kind of news to me.

Chairman SPECTER. Thank you, Senator Feinstein.

Senator Leahy.

Mr. EISENBERG. Mr. Chairman, might I say a word about the 

postcard denials very briefly?

Chairman SPECTER. Yes, you may.

Mr. EISENBERG. I appreciate it. Thank you.

Chairman SPECTER. To the extent you can make it brief, we 

would appreciate it.

Mr. EISENBERG. Senator, my understanding is that in many of 

those cases of postcard denials, the reason for the denial is essentially a procedural default, a timeliness ruling. And when the case 

gets to Federal court they should not be starting over from scratch. 

They should be applying the default. And much of the litigation in 

California cases, I believe, has been the result of the failure to 

apply those defaults.

When the case gets to the California Supreme Court, moreover, 

it has already been typically through other courts along the way 

up, both on direct appeal and collateral review, and therefore, there 

is going to be some disposition of those claims either on procedural 

grounds or substantive grounds from the lower courts that the Federal courts should be looking to and deferring to to the extent that 

they can reach those claims at all.

I think the delays that we are talking about, the time periods 

that you are hearing, are the time from when the case gets to Federal court, not the time that it is spending in State court, and I 

think that those delays are difficult to explain.

Chairman SPECTER. Senator Leahy.

Senator LEAHY. Mr. Chairman, I would ask first to put in the 

record a number of things, including the ABA’s concerns about this.

26

Chairman SPECTER. Without objection that will be made a part 

of the record.

Senator LEAHY. Judge McKibben, you will not recall this, but we 

met not long after you became DA of Douglas County?

Judge MCKIBBEN. That is correct.

Senator LEAHY. I was out there for a prosecutors’ meeting. I had 

hair then. So did you. You still have yours.

[Laughter.]

Judge MCKIBBEN. Barely.

Senator LEAHY. Mr. Waxman, I found out this morning that a 

modified version of a provision from this bill has been slipped into 

the current draft of the House-Senate Conference Report on the 

PATRIOT Act reauthorization provision. The reason for some of the 

surprise is neither the House nor the Senate PATRIOT bill, actually neither the House nor the Senate has ever passed this provision in any form. As it appears in the Conference report which we 

just got a couple of hours ago, the provision would shift from the 

Federal courts to the Attorney General of the United States, the responsibility for determining whether the State has established a 

qualifying mechanism for providing competent counsel to indigent 

defendants in State post-conviction proceedings, and that would be 

subject to review by the D.C. Circuit.

The Attorney General would write the rules for certifying State 

systems. States need only substantially comply with the statutory 

requirements in order to qualify. Once a State has been certified, 

and that certification has been upheld in appeal, there is no apparent way for a State to be decertified, even though they may decide 

to totally change their system after getting certification.

I had my staff provide you with a copy of the new proposal. I 

think you have probably had about 5 minutes to take a look at it.

Assuming the proposals I described, what do you think of that?

Mr. WAXMAN. Well, I would not favor it. I did get a copy of it 

just before the hearing started, and I cannot say—I am not an expert at reviewing legislation, and I cannot say that I completely understand what the text provides. But my views about—

Senator LEAHY. I am not asking you to go into the question that 

was not considered by either the Senate or the House. It was just 

kind of slipped in in the middle of the night by—

Mr. WAXMAN. I think that it is dismaying to include in legislation dealing with the very serious problem of terrorism, a provision 

that, at least so far as I understand it, has nothing to do with that, 

and that was not considered by or voted out of either of the two 

Judiciary Committees that have now held two hearings on this procedure. And so on procedural grounds I guess I am sort of surprised about this.

If I understand the legislation, it would allow the Attorney General of the United States, not only to make the decision about 

whether States qualify for Chapter 154, but also to set the standards that constitute qualification, whereas now in AEDPA, AEDPA 

actually includes statutory standards.

I certainly do not think that the statutory provisions themselves 

for qualification ought to be changed. I cannot even imagine what 

the reason is why the Attorney General would have authority to do 

27

that. But I also think that it is a very grave mistake and an unwarranted act to take the process of certification, which is essentially an adjudicative process, away from an Article III court and 

give it to somebody who, as I said in my written testimony, whoever the Attorney General is, whatever their views are, is in the 

context of an adversarial system of criminal justice is a prosecutor.

Senator LEAHY. Correct.

Mr. WAXMAN. If I could just finish my sentence. That is why, for 

example, when the Justice Department participates in State habeas litigation in the Supreme Court, it either participates on the 

side of the prosecution or it does not participate at all. I am not 

aware of any instance—there may be one, but it would certainly be 

the exception that proves the rule—where the Attorney General 

comes into Federal courts in State habeas proceedings on behalf of 

the prisoner, but there are many instances in which I and other Solicitors General have filed amicus briefs in support of the State. So 

I just think there is an appearance issue, and since there is no evidence of any State that has made a serious effort to try to get into 

Chapter 154 other than Arizona, which has been certified, I just do 

not think there is any cause to turn this decision over to the Attorney General.

Senator LEAHY. Mr. Eisenberg suggested that the cause and prejudice test was satisfactory before AEDPA was enacted, but has become a problem since then. Do you agree?

Mr. WAXMAN. I know of no evidence whatsoever to support that 

assertion. I mean he is referring to a particular, I guess, Third Circuit decision. I am not familiar with the decision. I certainly could 

look at it, but the notion that the cause and prejudice standard has 

now risen like Frankenstein from the crypt to become a problem 

as a result of AEDPA is a perplexing one to me. I do not think that 

the data would bear that out.

Senator LEAHY. I will set an example by being the only person 

who sticks within their time, and I will submit my other questions 

for the record, Mr. Chairman, but I do have a number of questions.

Chairman SPECTER. Thank you very much, Senator Leahy.

Senator Kyl, would you object if we went to Senator Feingold 

next?

Senator KYL. No, not at all, but I do have some—

Chairman SPECTER. We will come back to you.

Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you, Mr. Chairman. I do want to 

thank you for holding this hearing today on the Streamlined Procedures Act. I am always sincere when I thank you, but I am especially sincere about it today.

You and others on the Committee have been working over the 

past few months to make changes to this extremely complex bill, 

and I am gratified that we have witnesses here today who can help 

us better understand the bill in its current form, as well as the 

very serious implications this bill could have for our criminal justice system.

28

Mr. Chairman, I think this is how the Senate should work. Before we proceed to report out complex legislation like this bill, we 

must be fully armed with the facts needed to evaluate it and allow 

us to make an informed recommendation to the rest of the Senate, 

and this hearing is an important step in that process, and again, 

I thank you for your willingness to do it at a convenient time.

Mr. Chairman, I would ask that my full opening statement be 

placed in the record.

[The prepared statement of Senator Feingold appears as a submission for the record.]

Senator FEINGOLD. Mr. Waxman, let me begin by following up on 

Senator Leahy’s question. I am trying to better understand this habeas language that we understand could be in the PATRIOT Act 

reauthorization Conference Report. As I understand it, it allows the 

Attorney General to certify a State to opt in to Chapter 154 with 

D.C. Circuit review of that certification.

As I read the provision, the opt-in procedures would go into effect 

as soon as the AG certifies the State before the D.C. Circuit reviews it. Is that correct, and is that not problematic?

Mr. WAXMAN. I do not know if it is correct, but if it were it would 

be yet another reason why this legislation is problematic, as is, for 

example, Senator Leahy mentioned, that apparently the legislation 

does not include any provisions for decertification. Once you have 

got your delicatessen ticket you would be sort of in line forever, if 

I can really mangle a metaphor.

Senator FEINGOLD. Let me go to Section 5 of the bill that modifies the rule for tolling the 1-year statute of limitations on Federal 

habeas petition. Can you explain how that section would change 

current law and whether you think the change is justified?

Mr. WAXMAN. I do not think that the change is justified, at least 

I do not know of any data or analysis that would suggest there is 

any reason to change it, but AEDPA, for the first time in our history, enacted a statute of limitations for access to Federal habeas 

corpus. Many people thought at the time that the whole notion of 

a statute of limitations was completely antithetical to the Writ of 

Habeas Corpus as it has been known and practiced ever since 

magna carta, but concerns about delays in getting to Federal court 

prompted the Congress to take this unprecedented step.

Now, questions have come up since AEDPA was enacted about 

the 1-year statute and what days get counted and not counted. 

AEDPA has a sensible rule that while cases are pending in State 

courts, while State courts actually have the case, you cannot charge 

the petitioner, the prisoner with that time. But the question is 

what about the periods in between? I would have though that the 

law as the Supreme Court has explicated the 1-year provision 

under AEDPA is both clear and manifestly appropriate. The language that Section 5 now uses to alter the existing tolling regime 

is very unclear. It is not clear what is meant by the terms ‘‘original 

write’’ or ‘‘properly filed.’’

I think it is a mistake for it to limit the tolling periods for only 

for the filing, adjudication of Federal claims, rather than claims 

that are pleaded as State constitutional violations, but as to which 

29

evidence is subsequently revealed, constitutes a Federal constitutional claim. Here is my overriding point: I do not know, I simply 

cannot understand what this provision is trying to address. If it is 

trying to address anything other than the unique California system 

of successive original writs rather than the normal process of applying and appealing to a higher court.

If it is trying to address something other than California, I cannot imagine what it is other than the doctrine, as Mr. Eisenberg 

mentioned, of equitable tolling. I do not know of any data—and I 

would be surprised to see it—that the principle of equitable tolling, 

that safeguard of equitable tolling, is in fact a systemic problem or 

is being abused in any way.

Senator FEINGOLD. And it applies in all cases, not just habeas 

cases, right?

Mr. WAXMAN. Yes, it is what courts do.

Senator FEINGOLD. Then why would we want to make a special 

exception not to explain this general doctrine in habeas cases 

where individuals’ lives and liberties are at stake?

Mr. WAXMAN. I do not know, and I do not even know that there 

is a problem that it is seeking to address.

Senator FEINGOLD. Do you think Section 5 should be taken out 

of the bill?

Mr. WAXMAN. I do, and I think even with respect to California—

I litigated Carey v. Saffold, which is the Supreme Court decision 

that is held up as one in need of remedy. I just want to say that 

California has chosen its own system for how it wants to administer its post-conviction proceedings. It has done so fully cognizant 

of how long its own State chosen system takes, and if there was 

any doubt about it whatsoever, it certainly became aware of the habeas consequences after the Supreme Court decided Carey v. 

Saffold.

Now, I understand that prosecutors in California object to California’s system of post-conviction review, and I think actually if I 

were a prosecutor in the State of California, I would too. But I 

think that they are bringing their case to the wrong legislature. I 

think their case needs to go to the legislature of California which 

has made a sovereign choice. I view an attempt to sort of legislate 

these time limits for the special case of California to be profoundly 

inconsistent with principles of federalism.

Senator FEINGOLD. Thank you, Mr. Chairman.

Chairman SPECTER. Thank you, Senator Feingold.

Senator Kyl.

Senator KYL. Thank you, Mr. Chairman. I really want to get into 

the Section 154, but I wonder, Mr. Eisenberg, if there is any response that you want to make to the last colloquy between Senator 

Feingold and Mr. Waxman. If so, please do at this time.

Mr. EISENBERG. Thank you, Senator. I would like to discuss the 

notion that California has essentially chosen its own delay by virtue of its own State system. We live in a Federal system where the 

States get to choose varying ways of approaching these problems. 

It is not supposed to be the job of the Federal habeas corpus statVerDate 0ct 09 2002 14:31 Apr 26, 2006 Jkt 027148 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27148.TXT SJUD4 PsN: CMORC
30

ute to mandate uniformity among the States in that regard, but 

take a look at Pennsylvania, which has chosen exactly the opposite 

approach from California. We have a system where cases move 

through post-conviction review in State court very much like in the 

Federal habeas corpus area. We have a 1-year deadline which is 

modeled after AEDPA, and yet our Federal courts have refused to 

give effect to those State rules in the same way that the Federal 

courts in California have refused to give effect to the rulings that 

are occurring there.

So the notion that it is because of the strange complexity of the 

California system that we have these delays in Federal court is 

false, and in fact, to look at the question more largely in terms of, 

for example, the counsel systems, if you look at the States that 

have done the most to address the counsel question—and by the 

way, my understanding is that Arizona still has not been certified 

despite its efforts in that regard, and that California was the State 

for whom the provision in Chapter 154 was most specifically crafted, and yet California has been held not to qualify.

The States that have done the most in providing counsel at the 

post-conviction stage, the State post-conviction stage, which is 

where Chapter 154 focuses, I would suggest are actually the States 

that see the longest delays on Federal habeas corpus review. In 

other words, those delays are not shorter. The provision of counsel 

systems in States like California, Arizona, Pennsylvania, where we 

have had mandatory appointment of counsel for State post-conviction petitions since long before AEDPA, in those States and in 

other States in areas around the country, outside the areas where 

the counsel complaints are usually made, Mississippi and Alabama 

and all those sorts of places, those are precisely the States where 

some of the longest delays are seen on Federal habeas corpus review, and the States which supposedly have the worst system of 

counsel, tend to be States which see some of the shortest delays on 

Federal habeas corpus review.

So the notion that there is some relationship between States not 

carrying the ball on their counsel systems and Federal courts having to delay on Federal habeas corpus, is false, it is exactly the opposite.

Senator KYL. It might be because there is good counsel in those 

States that are trying to comply.

Just one quick question, Mr. Waxman, and then a more complicated question. I am going to ask them both at the same time, 

so you are answering here. I referred before—I asked Judge 

McKibben, but I did not ask you—about the time limits that we include in the bill, the 300-day limit on issuing Court of Appeals 

opinion after briefing is completed and on the rehearing, a petition 

for rehearing, 90 days to rule on a petition for rehearing.

You talked about the fact it would be good to have a study to see 

really why delays were occurring, but that if it were—that it may 

well be appropriate to set limits. Would those limits be appropriate, 

in your view?

And then I am going to ask you one more question on my time.

Mr. WAXMAN. Is the next one the complicated one?

31

Senator KYL. It is actually not, but it takes just slightly longer 

to ask. I think that what Mr. Eisenberg just said about the Ninth 

Circuit decision in Spears v. Stewart is correct, that is to say that 

even though theoretically Arizona qualified in this one particular 

case, the benefits, the timelines were not allowed to be applied in 

the case, and the dissent in the case, 11 of the judges in the full 

Ninth Circuit review of the case, said the qualification aspect of it 

is strictly dicta, they would not apply it. In fact they said, quote, 

‘‘To put it bluntly, neither we nor any other court is bound by the 

panel’s advisory declarations in the case.’’ It seems to me very uncertain that in any future case the Ninth Circuit, get two of the 

judges out of those 11 on your panel, clearly it is not going to qualify. In no case—in other words, have the benefits of 154 even been 

applied in Arizona, and so I am not nearly as sanguine as—well, 

I guess I should ask you how sanguine you really are that Arizona 

will receive the benefits of Section 154 in the future.

Mr. WAXMAN. First of all, with respect to the specific time limits 

in the bill, since I do not—I really have no idea why these cases 

that have been pending for a long time, why they have been pending for a long time, and so I guess I would not want to say whether 

I think these limits are appropriate or not. I mean certainly 300 

days after briefing seems appropriate, but I cannot tell you the 

number of cases that I have argued more than 300 days before I 

have gotten a decision both in civil and criminal cases.

Senator KYL. [Off microphone.]

Mr. WAXMAN. Well, you know, I am an inpatient person and it 

is hard for me to remember these things unless I get a decision in 

real time.

In terms of Arizona qualifying or not qualifying, on a theory that 

no good deed ever goes unpunished, I now feel like I am being 

called upon to predict, to evaluate the extent to which Arizona really has done what is necessary to qualify, or the extent to which 

maybe it has not.

My understanding was that a majority of the court said that it 

had, and so long as it maintains a system that meets the AEDPA 

statutory standards, it darn well should continue to qualify. I have 

been handed a letter that the Public Defender’s Office—very excellent as far as I can tell—Public Defender’s Office in Phoenix submitted to Senator Leahy I guess last week, joining issue with Kent 

Ketane with whom I shared this table a few months ago, about the 

specifics of the cases, and I guess I would not want to cast my lot 

on the facts one way or the other.

My only point here is I certainly do not think we know whether 

or not Arizona will justly get its reward under 154 for a system 

that it has appropriately put in place. We are trying to divine essentially like a Rosetta Stone from the one decision that Your 

Honor—you have been called a judge, I will call you Your Honor 

even though you do not have a robe on. We just do not know, and 

in any event, I really do think that it would be a bad idea both in 

practice and in public perception to give this decision to the country’s chief law enforcement prosecutor. I just think that—I do not 

think the case has been made for why that would be an appropriate thing.

32

Last, I realize I did not answer an earlier simple question that 

you asked me, which is, is it not the case that there is no cause 

and prejudice standard under Chapter 154, which is sort of viewed 

as this sort of stump-the-witness question since for the life of me, 

I cannot remember what is and is not in 154.

But now that I am looking at Section 2264(a)(A), I think the answer is that it does have a cause standard, but it does not even—

if you meet the cause standard, you do not even have to prove any 

prejudice. Now it is a strict cause standard, but it does not have 

prejudice requirement, much less the, quote, ‘‘actual innocence or 

no involvement standard.’’ I could be wrong, but that is the way 

I read it.

Senator KYL. I would want to take that further.

Mr. Chairman, I just make this point, since Mr. Waxman concluded his earlier answer with something which is pregnant with 

dispute. The exact reason why it makes sense to have the Department of Justice determine the compliance with the statute, to be 

reviewed by a Federal court, is because otherwise you have an ad 

hoc determination and precisely the issues raised by the Spears

case, where the court says, gee, in this case it appears that you had 

a good set of counsel and so on, but we are still not going to apply 

it, and the other judges say, and we are not bound by this in any 

future case. You never have resolution. No one can rely upon the 

system either qualifying or not. You always know you are going to 

have a case made at the end of the day before a judge that the provisions cannot apply because the procedures were inadequately established, or the program was inadequately established, or operated.

It seems to me that having a determination made and then the 

court reviewing it in each case, is a better way to do it than having 

the court establish in each case whether you qualify preliminarily 

to even be able to argue that you can use these 154 expedited review standards.

That is my answer to your point.

Thank you, Mr. Chairman.

Chairman SPECTER. Mr. Waxman, my round of questioning has 

finally come, and I will begin with you, but with first an observation that it is not—and I know you are not representing to be an 

expert in Congressional practices, but it is not unusual to have 

something in a Conference report which is not part of the PATRIOT Act. We have quite a number of provisions which will be 

added to it.

With respect to this issue about the appropriateness of the Attorney General’s certification, the Innocence Protection Act has an Attorney General certification. Would there be any reason to approve 

that and not a certification here?

Mr. WAXMAN. I am going to have to admit that I am not fully 

up to speed on the Innocence Protection Act and how the certification works. I was asked to give my opinion about some legislation 

that I only received after I was already sitting at this table and—

Chairman SPECTER. That is OK. You are not expected to be an 

encyclopedia, but there are quite a few provisions, and I have just 

consulted with my Chief Counsel, Mike O’Neill, who is a Professor, 

33

and the thoughts come to mind about preclearance on the Voting 

Rights Act, which is an adjudicatory function. There are some provisions under Environmental Protection where the Department of 

Justice performs adjudicatory functions. There are preclearances on 

mergers, antitrust, where there is an adjudicatory function. And I 

believe that the Innocence Protection Act is a pretty good example. 

I am trying to determine whether there is even a court review of 

that. But that is a legislative matter for us in any event.

With respect to the issue of having the Attorney General make 

the determination, we are trying to move ahead on a question 

which is very problemsome we have not been able to answer. And 

I do think that Senator Kyl raises a very good point about what 

is happening to Arizona and could it be applicable to other States 

on an incentive to provide adequate counsel. The way the situation 

is now, it appears that other States are discouraged from doing so. 

But the provision which we are considering in the Conference report, nothing is final. It was not slipped in. It was something that 

I discussed yesterday with Senator Leahy, and I reminded him of 

that a few moments ago before he left. So that these disclosures are 

made, and you do not read about it after the fact. But it does require the statutory standards to be maintained, and it does have 

provisions for decertification.

Judge McKibben, thank you very much for being here, for your 

participation. Notwithstanding the objections which you have 

raised to the pending proposals, do you think that the habeas corpus procedures ought to be modified by any new Federal statute?

Judge MCKIBBEN. Well, I think that the Committee should move 

slowly in this area until there has been an opportunity to determine if there are in fact any type of systemic problems on delay. 

As I understand it, the principal reason behind this legislation is 

that there have been indications that in some districts, cases may 

have been delayed in the disposition process. And I think until the 

study is undertaken to examine that and review those cases, and 

see if in fact there is any type of systemic problem—

Chairman SPECTER. Do you know of no systemic problem yourself?

Judge MCKIBBEN. I am not aware of cases that have been unduly 

delayed between the time that they come into Federal court and 

when they go back to State court. There may well be some delays 

in State court. That is inherent in the process that we have in federalism and comity. I know Seth Waxman indicated that there are 

occasions where the court asks the prosecutor if they are willing to 

waive unexhausted claim issues and not have them go back to the 

State court, have them resolved in Federal court, which certainly 

would expedite the process. But as long as we consider comity and 

federalism to be an important doctrine, which we certainly do, that 

is going to be inherent in the process. And, changing the statutory 

scheme and the standards for being able to secure review, I think 

is going to complicate the process. We are going to be litigating 

that for the next 8 or 10 years.

Chairman SPECTER. Mr. Waxman, do you know of any provision 

that ought to be modified, if there is any useful addition by Federal 

legislation on this issue at this time?

34

Mr. WAXMAN. I am not. One way, as I indicated at the outset, 

I think that it may well be that there are enduring problems either 

that have persisted notwithstanding the enactment of AEDPA, and/

or problems that have been created, a level of unfairness that has 

been created by AEDPA, all of which would be appropriate for legislation, but I do again urge the Committee and the Congress to 

reach out to the AO and the Conference of State Chief Judges, and 

the Federal Judicial Center. Let’s get the data and some analyses 

and identify what are the problems that have either on a systemic 

basis persisted and why, and what problems has AEDPA perhaps—

Chairman SPECTER. I am just asking if you know of any, and the 

answer is no.

Mr. WAXMAN. No.

Chairman SPECTER. Senator Feingold, I understand you want another round, which is certainly a more modest request than another hearing.

[Laughter.]

Senator FEINGOLD. Mr. Chairman, you were kind to allow this 

hearing, and I am not even going to use a whole round. I just want 

to ask Judge McKibben a couple of questions.

Chairman SPECTER. Do not forget the hearing before this too.

Senator FEINGOLD. I was happy about that hearing too.

[Laughter.]

Senator FEINGOLD. I will try to be brief.

Chairman SPECTER. You are recognized, Senator Feingold, for 

however long you like up to 5 minutes.

[Laughter.]

Senator FEINGOLD. That is what I thought. Thank you, Mr. 

Chairman.

Judge, the vast majority of Federal habeas cases are in non-capital cases, is that not right?

Judge MCKIBBEN. That is correct, about 18,000 a year.

Senator FEINGOLD. And individuals who have been sentenced to 

a prison term or even life imprisonment really have no incentive 

to delay their legal proceedings, do they?

Judge MCKIBBEN. Not to my knowledge. The sooner they can 

have the matter disposed of, particularly if it is favorable, the sooner they would be released if they are successful.

Senator FEINGOLD. So when we are talking about those kind of 

cases, there is not even any potential for the kind of dilatory tactics 

that some Senators are worried about, is that not correct?

Judge MCKIBBEN. The Conference has expressed that in the communications I have provided to the Committee. That is correct.

Senator FEINGOLD. Judge, one of the big problems with erecting 

extremely complex procedural barriers in habeas cases, as we have 

talked about, is that many State defendants are navigating their 

State systems with no counsel or with an attorney who is overworked, underpaid and has no investigative resources. Does the 

statute here help to address in any way situations in which petitioners had no counsel or incompetent counsel in State court?

Judge MCKIBBEN. That is one of the concerns the Conference 

has. It seems to me that part of the problem here is ensuring that 

35

there is competent counsel throughout the State process, and that 

would include post-conviction. If you have competent counsel, then 

it makes it much easier to navigate the post-conviction review in 

the Federal courts.

A great number of the cases that we have, the petitioners do not 

have counsel, and the petitions get filed, and then you go through 

the amendment process where they have to refine it and we have 

to try to understand it. We have a special Habeas Unit in our court 

that works with that because they are able to look at those petitions, most of them, many of them handwritten, and attempt to discern exactly what it is that is being set forth. And then they have 

an opportunity for amendment.

This bill does not really address that issue, and I think that is 

a core issue that has to be resolved before we will be able to expedite these cases in the future, more so than is being done now.

Senator FEINGOLD. I thank you, and I thank all the witnesses.

And again I thank you, Mr. Chairman, for the hearing.

Chairman SPECTER. Thank you very much, Senator Feingold.

Senator Kyl, you had the first word on this bill, and you may 

have the last word.

Senator KYL. Thank you, Mr. Chairman. There is so much more 

we could talk about. I have got a whole series of questions here. 

I think probably that we have imposed upon our witnesses long 

enough in this open hearing. But I do think the process of working 

around a table has helped. And if we do not presume too much 

more on the experts’ time here, I would hope for that opportunity 

in the future as well.

We certainly have not rushed this now. I mean it has now been 

almost 6 months, and it is important business to take the time and 

do it right. I just hope that we can get beyond what I said in the 

beginning is undoubtedly a clash of two points of view that are difficult to reconcile about the use of habeas corpus, and perhaps also 

come to an agreement that if the statistics do reveal significant 

problems, particularly in the capital cases, as the Arizona study—

which I will share with you—I think does, that armed with that 

information, we would be willing to make some changes statutorily. 

It is perfectly appropriate for us to legislate in this area. I think 

we all agree with that.

And the notation that you made about the number of Supreme 

Court cases that have just now come to fruition and provided guidance is an illustration of the fact that if we get it right—it is a big 

‘‘if’’—but if Congress gets it right in the way that it writes legislation, we can express intent and clear up issues and provide clear 

guidance across the board, and in many respects more specifically 

than the courts do it through the cases that may or may not come 

before them with particular fact situations they have and the like.

It is hard to make law in this area through case law. And what 

we are trying to do here is be specific and precise and general in 

our application to everybody, rather than just having ad hoc determinations that may or may not have precedential effect, and that 

differ in facts, and therefore are of limited value in other situations, and which make it—I think Mr. Waxman, you said—one of 

the more esoteric areas of law that has a great deal of unsettled 

36

aspects to it. We are trying to settle some of those, and that is our 

intention here.

So if you grant that the legislature has that potential if we do 

it right, I would hope you would continue to work with us to try 

to help us get it right so that we can provide more certainty and 

at least in States that are really trying hard. I mean Arizona 

spends like $60,000 on the average case, and on the difficult cases 

it is far more than that. I am quite familiar with the process. They 

are really trying hard and have been for a number of years. I think 

it is discouraging when other States see that it does not seem to 

have the intended effect in terms of the certification. so that is my 

plea. I again express my gratitude to all of you and the others who 

have helped to work on this, and hope, Mr. Chairman, that we can 

continue to try to work this issue. And thank you again.

Chairman SPECTER. Thank you very much, Senator Kyl.

Thank you, Judge McKibben and Mr. Waxman and Mr. 

Eisenberg.

That concludes our hearing.

[Whereupon, at 11:45 a.m., the Committee was adjourned.]

[Questions and answers and submissions for the record follow.]

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