II 

109TH CONGRESS 

1ST SESSION S. 1088 

To establish streamlined procedures for collateral review of mixed petitions, 

amendments, and defaulted claims, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 19, 2005 

Mr. KYL introduced the following bill; which was read twice and referred to 

the Committee on the Judiciary 

A BILL

To establish streamlined procedures for collateral review of 

mixed petitions, amendments, and defaulted claims, and 

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Streamlined Procedures Act of 2005’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Mixed petitions. 

Sec. 3. Amendments to petitions. 

Sec. 4. Procedurally defaulted claims. 

Sec. 5. Tolling of limitation period. 
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Sec. 6. Harmless error in sentencing. 

Sec. 7. Unified review standard. 

Sec. 8. Appeals. 

Sec. 9. Capital cases. 

Sec. 10. Clemency and pardon decisions. 

Sec. 11. Ex parte funding requests. 

Sec. 12. Crime victims’ rights. 

Sec. 13. Technical corrections. 

Sec. 14. Application to pending cases.

1 SEC. 2. MIXED PETITIONS. 

2 Section 2254(b) of title 28, United States Code, is 

3 amended— 

4 (1) in paragraph (1), by striking subparagraphs 

5 (A) and (B) and inserting the following: 

6 ‘‘(A) the applicant— 

7 ‘‘(i) has exhausted the remedies available 

8 in the courts of the State by fairly presenting 

9 and arguing the specific Federal basis for each 

10 claim in the State courts; and 

11 ‘‘(ii) has described in the application how 

12 the applicant has exhausted each claim in the 

13 State courts; or 

14 ‘‘(B)(i) the application presents a claim for re15 lief that would qualify for consideration on the 

16 grounds described in subsection (e)(2); and 

17 ‘‘(ii) the denial of such relief is contrary to, or 

18 would entail an unreasonable application of, clearly 

19 established Federal law, as determined by the Su20 preme Court of the United States.’’; and 

21 (2) by adding at the end the following: 
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1 ‘‘(4) Any unexhausted claim that does not qualify for 

2 consideration on the grounds described in this subsection 

3 shall be dismissed with prejudice.’’. 

4 SEC. 3. AMENDMENTS TO PETITIONS. 

5 (a) IN GENERAL.—Section 2244 of title 28, United 

6 States Code, is amended by adding at the end the fol7 lowing: 

8 ‘‘(e)(1) An application for a writ of habeas corpus 

9 may be amended once as a matter of course before the 

10 earlier of the date on which an answer to the application 

11 is filed or the expiration of the 1-year period described 

12 in subsection (d). 

13 ‘‘(2) Except as provided under paragraph (1), an ap14 plication may not be amended to modify existing claims 

15 or to present additional claims, unless the modified or 

16 newly presented claims would qualify for consideration on 

17 the grounds described in subsection (b)(2).’’. 

18 (b) CONFORMING AMENDMENT.—Section 2242 of 

19 title 28, United States Code, is amended in the third un20 designated paragraph by striking ‘‘in the rules of proce21 dure applicable to civil actions’’ and inserting ‘‘under sec22 tion 2244(e)’’. 

23 SEC. 4. PROCEDURALLY DEFAULTED CLAIMS. 

24 (a) IN GENERAL.—Section 2254 of title 28, United 

25 States Code, is amended— 
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1 (1) by redesignating subsections (h) and (i) as 

2 subsections (i) and (j), respectively; and 

3 (2) by adding after subsection (g) the following: 

4 ‘‘(h)(1) A court, justice, or judge shall not have juris5 diction to consider an application for a writ of habeas cor6 pus on behalf of a person in custody pursuant to the judg7 ment of a State court with respect to any claim that was 

8 found by the State court to be procedurally barred, or any 

9 claim of ineffective assistance of counsel related to such 

10 claim, unless— 

11 ‘‘(A) the claim would qualify for consideration 

12 on the grounds described in subsection (e)(2); or 

13 ‘‘(B) the State, through counsel, expressly 

14 waives the provisions of this paragraph. 

15 ‘‘(2)(A) A court, justice, or judge shall not have juris16 diction to consider any claim that the State court denies 

17 on the merits and on the ground that the claim was not 

18 properly raised under State procedural law, or any claim 

19 of ineffective assistance of counsel related to such claim, 

20 unless the claim would qualify for consideration on the 

21 grounds described in subsection (e)(2). 

22 ‘‘(B) A court, justice, or judge shall not have jurisdic23 tion to consider any claim that is otherwise subject to 

24 paragraph (1) and that was reviewed by the State court 

25 for plain error, fundamental error, or under a similarly 
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1 heightened standard of review, unless the claim would 

2 qualify for consideration on the grounds described in sub3 section (e)(2). 

4 ‘‘(3) The State shall not be required to answer any 

5 claim described in paragraph (1) or (2) unless the court 

6 first determines that the claim would qualify for consider7 ation on the grounds described in subsection (e)(2). 

8 ‘‘(4) If a court determines that a State court order 

9 denying relief on procedural grounds is ambiguous as to 

10 which claims were found to be procedurally barred, the 

11 court shall resolve any perceived ambiguity, if necessary, 

12 by examining the full record in the State court. 

13 ‘‘(5) An application for a writ of habeas corpus on 

14 behalf of a person in custody pursuant to the judgment 

15 of a State court shall not be granted with respect to any 

16 claim under paragraph (1) or (2) unless the denial of such 

17 relief is contrary to, or would entail an unreasonable appli18 cation of, clearly established Federal law, as determined 

19 by the Supreme Court of the United States.’’. 

20 (b) LIMITATION.—Section 2244(d)(2) of title 28, 

21 United States Code, as amended by section 3, is amended 

22 by adding at the end the following: ‘‘An application that 

23 was otherwise improperly filed in State court shall not be 

24 deemed to have been properly filed because the State court 
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1 exercises discretion in applying a rule or recognizes excep2 tions to that rule.’’. 

3 SEC. 5. TOLLING OF LIMITATION PERIOD. 

4 Section 2244(d) of title 28, United States Code, is 

5 amended— 

6 (1) in paragraph (2), by striking ‘‘judgment 

7 or’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(3) In this section, an application for State post10 conviction or other collateral review— 

11 ‘‘(A) is pending from the date on which the ap12 plication is filed with a State court until the date on 

13 which the same State court rules on that applica14 tion; and 

15 ‘‘(B) is not pending during any period of time 

16 between the date on which a State court rules on 

17 that application and the date on which the applica18 tion or a related application is filed, or is otherwise 

19 presented, for adjudication to such State court on 

20 rehearing authorized by State law or to a higher 

21 State court. 

22 ‘‘(4) The period of limitation under paragraph (1) 

23 may be tolled, suspended, or extended only as provided 

24 under this subsection.’’. 
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1 SEC. 6. HARMLESS ERROR IN SENTENCING. 

2 Section 2254 of title 28, United States Code, as 

3 amended by section 4, is amended by adding at the end 

4 the following: 

5 ‘‘(k) A court, justice, or judge shall not have jurisdic6 tion to consider an application with respect to an error 

7 relating to the applicant’s sentence or sentencing that has 

8 been found to be harmless or not prejudicial in State court 

9 proceedings, unless a determination that the error is not 

10 structural is contrary to clearly established Federal law, 

11 as determined by the Supreme Court of the United 

12 States.’’. 

13 SEC. 7. UNIFIED REVIEW STANDARD. 

14 Section 107(c) of the Antiterrorism and Effective 

15 Death Penalty Act of 1996 (28 U.S.C. 2261 note) is 

16 amended by striking ‘‘Chapter 154 of title 28, United 

17 States Code (as amended by subsection (a))’’ and insert18 ing ‘‘This title and the amendments made by this title’’. 

19 SEC. 8. APPEALS. 

20 (a) APPELLATE TIME LIMITS.—Section 2254 of title 

21 28, United States Code, as amended by sections 4 and 

22 6, is further amended by adding at the end the following: 

23 ‘‘(l) In review by a court of appeals of a district 

24 court’s determination of an application for a writ of ha25 beas corpus on behalf of a person in custody pursuant to 

26 the judgment of a State court, the following shall apply: 
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1 ‘‘(1) A timely filed notice of appeal from an 

2 order issuing a writ of habeas corpus shall operate 

3 as a stay of that order, pending final disposition of 

4 the appeal. 

5 ‘‘(2) A court of appeals shall decide the appeal 

6 from an order granting or denying a writ of habeas 

7 corpus— 

8 ‘‘(A) not later than 300 days after the date 

9 on which the brief of the appellee is filed or, if 

10 no timely brief is filed, the date on which such 

11 brief is due; or 

12 ‘‘(B) if a cross-appeal is filed, not later 

13 than 300 days after the date on which the ap14 pellant files a brief in response to the issues 

15 presented by the cross-appeal or, if no timely 

16 brief is filed, the date on which such brief is 

17 due. 

18 ‘‘(3)(A) If a petition is filed for a panel rehear19 ing or rehearing by the court of appeals en banc fol20 lowing a decision by a panel of a court of appeals 

21 under paragraph (2), the court of appeals shall de22 cide whether to grant the petition not later than 90 

23 days after the date on which the petition is filed, un24 less a response is required. 
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1 ‘‘(B) If a response to a petition is required 

2 under subparagraph (A), a court of appeals shall de3 cide whether to grant the petition not later than 90 

4 days after the date on which the response is filed or, 

5 if no timely response is filed, the date on which the 

6 response is due. 

7 ‘‘(C) If a panel rehearing is granted, the panel 

8 shall make a determination of the appeal on rehear9 ing not later than 120 days after the date on which 

10 the order granting a panel rehearing is entered. No 

11 second or successive petition for panel rehearing 

12 shall be allowed. 

13 ‘‘(D) If rehearing en banc is granted, the court 

14 of appeals shall make a final determination of the 

15 appeal not later than 180 days after the date on 

16 which the order granting rehearing en banc is en17 tered. 

18 ‘‘(4) If a court of appeals fails to comply with 

19 the requirements of this subsection, the State may 

20 petition the Supreme Court, or a justice thereof, for 

21 a writ of mandamus to enforce the requirements of 

22 this subsection. 

23 ‘‘(5) The time limitations in this subsection 

24 shall apply in all proceedings in a court of appeals 

25 on review of a district court’s determination of an 
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1 application for a writ of habeas corpus, including 

2 any such proceedings in a court of appeals following 

3 a remand by the Supreme Court for further pro4 ceedings. 

5 ‘‘(6) In proceedings following remand in a court 

6 of appeals, the time limit specified in paragraph (2) 

7 shall begin on the date the remand is ordered if fur8 ther briefing is not required in the court of appeals. 

9 If there is further briefing in the court of appeals, 

10 the time limit specified in paragraph (2) shall begin 

11 on the date on which a responsive brief is filed or, 

12 if no timely responsive brief is filed, from the date 

13 on which such brief is due. 

14 ‘‘(7) The failure of a court to meet or comply 

15 with a time limitation under this subsection shall not 

16 be a ground for granting relief from a judgment of 

17 conviction or sentence, nor shall the time limitations 

18 under this subsection be construed to entitle a cap19 ital applicant to a stay of execution, to which the ap20 plicant would otherwise not be entitled, for the pur21 pose of litigating any application or appeal.’’. 

22 (b) FINALITY OF DETERMINATION.—Section 

23 2244(b)(3)(E) of title 28, United States Code, is amended 

24 by striking ‘‘the subject of a petition’’ and all that follows 
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1 and inserting the following: ‘‘reheard in the court of ap2 peals or reviewed by writ of certiorari.’’. 

3 SEC. 9. CAPITAL CASES. 

4 (a) SCOPE OF REVIEW.—Chapter 154 of title 28, 

5 United States Code, is amended by striking section 2264 

6 and inserting the following: 

7 ‘‘§ 2264. Scope of Federal review 

8 ‘‘(a) IN GENERAL.—Except as provided in subsection 

9 (b), a court, justice, or judge shall not have jurisdiction 

10 to consider any claim relating to the judgment or sentence 

11 in an application covered under this chapter. 

12 ‘‘(b) EXCEPTION.—A court, justice, or judge has ju13 risdiction to consider an application under this chapter 

14 if— 

15 ‘‘(1) the applicant shows that the claim relies 

16 on a new rule of constitutional law, made retroactive 

17 to cases on collateral review by the Supreme Court, 

18 that was previously unavailable; or 

19 ‘‘(2) both— 

20 ‘‘(A) the factual predicate for the claim 

21 could not have been discovered previously 

22 through the exercise of due diligence; and 

23 ‘‘(B) the facts underlying the claim, if 

24 proven and viewed in light of the evidence as a 

25 whole, would be sufficient to establish by clear 
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1 and convincing evidence that, but for constitu2 tional error, no reasonable fact finder would 

3 have found the applicant guilty of the under4 lying offense.’’. 

5 (b) TIME LIMITS.—Section 2266(b)(1)(A) of title 28, 

6 United States Code, is amended by striking ‘‘180 days’’ 

7 and inserting ‘‘15 months’’. 

8 (c) REVIEW BY ATTORNEY GENERAL.— 

9 (1) IN GENERAL.—Section 2261(b) of title 28, 

10 United States Code, is amended— 

11 (A) by striking ‘‘(b) This chapter is appli12 cable if a State establishes’’ and inserting the 

13 following: 

14 ‘‘(b) This chapter is applicable if— 

15 ‘‘(1) the Attorney General of the United States 

16 certifies that a State has established’’; 

17 (B) in the first sentence, by striking the 

18 period at the end and inserting a semicolon; 

19 (C) by striking ‘‘The rule of court or stat20 ute must provide standards’’ and inserting the 

21 following: 

22 ‘‘(2) the court, statute, or other agency provides 

23 standards’’; 

24 (D) by striking the period at the end and 

25 inserting ‘‘; and’’; and 
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1 (E) by adding at the end the following: 

2 ‘‘(3) the order required under subsection (c) is 

3 entered on or after the effective date of the Attorney 

4 General’s certification under section 2267.’’. 

5 (2) TECHNICAL AND CONFORMING AMEND6 MENTS.—Section 2265(a) of title 28, United States 

7 Code, is amended— 

8 (A) by striking ‘‘(a) For purposes’’ and in9 serting the following: 

10 ‘‘(a)(1) For purposes’’; 

11 (B) by striking ‘‘This chapter shall apply, 

12 as provided in this section, in relation to a 

13 State unitary review procedure if the State es14 tablishes’’ and inserting the following: 

15 ‘‘(2) This chapter shall apply, as provided in this sec16 tion, in relation to a State unitary review procedure if— 

17 ‘‘(A) the Attorney General of the United States 

18 certifies that a State has established’’; 

19 (C) by striking ‘‘or by statute’’ and insert20 ing ‘‘, by statute, or by agency rule’’; 

21 (D) by striking the period after ‘‘pro22 ceedings’’ and inserting a semicolon; 

23 (E) by striking ‘‘The rule of court or stat24 ute must provide’’ and inserting the following: 
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1 ‘‘(B) the rule of the court, the statute, or the 

2 agency rule provides’’; 

3 (F) by striking the period at the end and 

4 inserting ‘‘; and’’; and 

5 (G) by adding at the end the following: 

6 ‘‘(C) the order required under subsection (b) is 

7 entered on or after the effective date of the Attorney 

8 General’s certification under section 2267.’’. 

9 (d) JUDICIAL REVIEW.—Chapter 154 of title 28, 

10 United States Code, is amended by adding at the end the 

11 following: 

12 ‘‘§ 2267. Judicial Review 

13 ‘‘(a) IN GENERAL.—If requested by the chief law en14 forcement officer of a State, the Attorney General of the 

15 United States shall determine whether the State has es16 tablished a qualifying mechanism for the purpose of sec17 tion 2261(b)(3) or 2265(a)(2)(C), and, if so, the date on 

18 which the mechanism was established. The date the mech19 anism was established shall be the effective date of the 

20 certification. 

21 ‘‘(b) REGULATIONS.—The Attorney General shall 

22 promulgate regulations to implement the certification pro23 cedure under subsection (a). 

24 ‘‘(c) REVIEW OF CERTIFICATION.— 
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1 ‘‘(1) IN GENERAL.—The Attorney General’s de2 termination of whether to certify a State under this 

3 section is subject to review exclusively as provided 

4 under chapter 158. 

5 ‘‘(2) VENUE.—The Court of Appeals for the 

6 District of Columbia Circuit shall have exclusive ju7 risdiction over matters under paragraph (1), subject 

8 to review by the Supreme Court under section 2350. 

9 ‘‘(3) STANDARD OF REVIEW.—The Attorney 

10 General’s determination of whether to certify a State 

11 under this section shall be conclusive unless mani12 festly contrary to the law and an abuse of discre13 tion.’’. 

14 (e) CLERICAL AMENDMENTS.—The table of sections 

15 for chapter 154 of title 28, United States Code, is amend16 ed— 

17 (1) by striking the item related to section 2264 

18 and inserting the following:

‘‘2264. Scope of Federal review.’’; 

19 and 

20 (2) by adding at the end the following:

‘‘2267. Judicial review.’’.

21 SEC. 10. CLEMENCY AND PARDON DECISIONS. 

22 (a) IN GENERAL.—Chapter 85 of title 28, United 

23 States Code, is amended by adding at the end the fol24 lowing: 
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1 ‘‘§ 1370. State clemency and pardon decisions 

2 ‘‘(a) IN GENERAL.—Except as provided under sub3 section (b), and notwithstanding any other provision of 

4 law, no Federal court shall have jurisdiction to hear any 

5 cause or claim arising from the exercise of a State’s execu6 tive clemency or pardon power, or the process or proce7 dures used under such power. 

8 ‘‘(b) EXCEPTION.—This section does not affect the 

9 jurisdiction of the Supreme Court to review any decision 

10 of the highest court of a State that involves a cause or 

11 claim arising from the exercise of a State’s executive clem12 ency or pardon power, or the process or procedures used 

13 under such power.’’. 

14 (b) CLERICAL AMENDMENT.—The table of sections 

15 for chapter 85 of title 28, United States Code, is amended 

16 by adding at the end the following:

‘‘1370. State clemency and pardon decisions.’’.

17 SEC. 11. EX PARTE FUNDING REQUESTS. 

18 Section 408(q)(9) of the Controlled Substances Act 

19 (21 U.S.C. 848(q)(9)) is amended— 

20 (1) by striking ‘‘(9) Upon’’ and inserting the 

21 following: ‘‘(9) (A) Upon’’; 

22 (2) by striking the last two sentences and in23 serting the following: ‘‘An application for services 

24 under this paragraph shall be decided by a judge 

25 other than the judge presiding over the post convic-
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1 tion proceeding under section 2254 or 2255 of Title 

2 28, United States Code, seeking to vacate or set 

3 aside a death sentence. Any amounts authorized to 

4 be paid under this paragraph shall be disclosed to 

5 the public immediately.’’; and 

6 (3) by adding at the end the following: 

7 ‘‘(B) No ex parte proceeding, communication, 

8 or request may be considered in a post-conviction ac9 tion pursuant to this section, except to the extent 

10 necessary to protect any confidential-communica11 tions privilege between the defendant and post-con12 viction counsel. The court shall not grant an applica13 tion for an ex parte proceeding, communication, or 

14 request unless the application has been served upon 

15 the respondent and the court has allowed the re16 spondent a reasonable opportunity to answer the ap17 plication. All proceedings, communications, or re18 quests conducted pursuant to this section shall be 

19 transcribed and made a part of the record available 

20 for appellate review.’’. 

21 SEC. 12. CRIME VICTIMS’ RIGHTS. 

22 Section 3771(b) of title 18, United States Code, is 

23 amended by adding at the end the following: ‘‘A crime vic24 tim shall also be afforded the rights established for crime 
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1 victims by this section in a Federal habeas corpus pro2 ceeding arising out of a State conviction.’’. 

3 SEC. 13. TECHNICAL CORRECTIONS. 

4 (a) APPEAL.—Section 2253(c)(1) of title 28, United 

5 States Code, is amended by striking ‘‘circuit justice or 

6 judge’’ and inserting ‘‘district or circuit judge’’. 

7 (b) FEDERAL CUSTODY.—Section 2255 of title 28, 

8 United States Code, is amended by designating the 8 un9 designated paragraphs as subsections (a) through (h), re10 spectively. 

11 SEC. 14. APPLICATION TO PENDING CASES. 

12 (a) IN GENERAL.—This Act and the amendments 

13 made by this Act shall apply to cases pending on and after 

14 the date of enactment of this Act. 

15 (b) TIME LIMITS.—In a case pending on the date of 

16 enactment of this Act, if the amendments made by this 

17 Act establish a time limit for taking certain action the pe18 riod of which began on the date of an event that occurred 

19 prior to the date of enactment of this Act, the period of 

20 such time limit shall instead begin on the date of enact21 ment of this Act.

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