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[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Proposed Rules]
[Pages 11705-11713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4800]

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DEPARTMENT OF JUSTICE

28 CFR Part 26

[Docket No. OJP (DOJ) 1540; AG Order No. 3255-2011]
RIN 1121-AA77

Office of the Attorney General; Certification Process for State 
Capital Counsel Systems

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: Section 2265 of title 28, United States Code, instructs the 
Attorney General to promulgate regulations to implement certification 
procedures for States seeking to qualify for the expedited Federal 
habeas corpus review procedures in capital cases under chapter 154 of 
title 28. The procedural benefits of chapter 154 are available to 
States that establish mechanisms for providing counsel to indigent 
capital defendants in State postconviction proceedings that satisfy 
certain statutory requirements. This proposed rule sets forth the 
required regulations for the certification procedure.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before June 1, 2011. Comments received by mail will 
be considered timely if they are

[[Page 11706]]

postmarked on or before that date. The electronic Federal Docket 
Management System (FDMS) will accept comments until Midnight Eastern 
Time at the end of that day.

ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office 
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW., 
Room 4234, Washington, DC 20530. To ensure proper handling, please 
reference OAG Docket No. 1540 on your correspondence. You may submit 
comments electronically or view an electronic version of this proposed 
rule at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lisa Ellman, Office of Legal Policy, 
(202) 514-4601 (not a toll-free number).

SUPPLEMENTARY INFORMATION: Posting of Public Comments. Please note that 
all comments received are considered part of the public record and made 
available for public inspection online at http://www.regulations.gov. 
Such information includes personal identifying information (such as 
your name and address) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you want to submit 
personal identifying information (such as your name and address) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You also must locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the paragraph above entitled FOR FURTHER INFORMATION 
CONTACT.

Overview

    Chapter 154 of title 28, United States Code, makes special 
procedures available to a State respondent in Federal habeas corpus 
proceedings involving review of State capital judgments, but only if 
the Attorney General has certified ``that [the] State has established a 
mechanism for providing counsel in postconviction proceedings as 
provided in section 2265,'' and if ``counsel was appointed pursuant to 
that mechanism, petitioner validly waived counsel, petitioner retained 
counsel, or petitioner was found not to be indigent.'' 28 U.S.C. 
2261(b). Section 2265(a)(1) provides that, in order for a State to 
qualify for the special habeas procedures, the Attorney General must 
determine that ``the State has established a mechanism for the 
appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel in State postconviction proceedings 
brought by indigent [capital] prisoners'' and that the State ``provides 
standards of competency for the appointment of counsel in [such 
proceedings].''
    Chapter 154 has been in place since the enactment of the 
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public 
Law 104-132, section 107, 110 Stat. 1214, 1221-26 (1996), but was 
amended by the USA PATRIOT Improvement and Reauthorization Act of 2005, 
Public Law 109-177, section 507, 120 Stat. 192, 250-51 (2006). Prior to 
the 2006 amendment, the determination of a State's eligibility for the 
special procedures was left to the Federal habeas courts. The 2006 
amendment assigned responsibility for chapter 154 certifications to the 
Attorney General of the United States, subject to de novo review by the 
Court of Appeals for the District of Columbia Circuit.

Rulemaking History

    Section 2265(b) directs the Attorney General to promulgate 
regulations to implement the certification procedure. To fulfill this 
mandate, the Department of Justice published a proposed rule in the 
Federal Register on June 6, 2007, that proposed adding a new subpart 
entitled ``Certification Process for State Capital Counsel Systems'' to 
28 CFR part 26. 72 FR 31217. The comment period ended on August 6, 
2007. The Department published a notice on August 9, 2007, reopening 
the comment period, 72 FR 44816, and the reopened comment period ended 
on September 24, 2007. The final rule establishing the chapter 154 
certification procedure was published on December 11, 2008, 73 FR 
75327, with an effective date of January 12, 2009.
    In January 2009, the United States District Court for the Northern 
District of California enjoined the Department ``from putting into 
effect the rule * * * without first providing an additional comment 
period of at least thirty days and publishing a response to any 
comments received during such period.'' Habeas Corpus Resource Ctr. v. 
U.S. Dep't of Justice, No. 08-2649, 2009 WL 185423, at *10 (Jan. 20, 
2009) (preliminary injunction); Habeas Corpus Resource Ctr. v. U.S. 
Dep't of Justice, No. 08-2649, slip op. at 1 (Jan. 8, 2009) (temporary 
restraining order). On February 6, 2009, the Department solicited 
further public comment, with the comment period closing on April 6, 
2009. 74 FR 6131.
    As the Department reviewed the submitted comments, it considered 
further the statutory requirements governing the regulatory 
implementation of the chapter 154 certification procedures. The 
Attorney General determined that chapter 154 gave him greater 
discretion in making certification determinations than the December 11, 
2008 regulations would have allowed. Therefore, the Department 
published a notice in the Federal Register on May 25, 2010, proposing 
to revoke the December 11, 2008 regulations by removing them from the 
Code of Federal Regulations pending the completion of a new rulemaking 
process, during which the Department would further consider what 
standards and procedures were appropriate. 75 FR 29217. The comment 
period closed on June 24, 2010. On November 23, 2010, the Department 
published a final rule removing the December 11, 2008 regulations. 75 
FR 71353.
    The rule proposed today is the result of the Attorney General's 
reconsideration of the appropriate standards and procedures for chapter 
154 certification. Sections 26.20 and 26.21 of the proposed rule are, 
respectively, a general statement of purpose and a section defining 
certain terms appearing in chapter 154. These sections are unchanged 
from the December 11, 2008 final rule. Section 26.22 explains the 
requirements for certification under chapter 154, relating to 
appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel in State postconviction proceedings in 
capital cases. It is significantly different from the corresponding 
section in the December 11, 2008 regulations, particularly with respect 
to counsel

[[Page 11707]]

competency and compensation standards. Section 26.23 sets out the 
procedures for accepting, obtaining public comment on, and deciding 
State requests for chapter 154 certification. It is similar in 
substance to the corresponding section of the December 11, 2008 
regulations, but in some respects simplified and updated. A section-by-
section analysis of the new proposed rule follows.

Section-by-Section Analysis

Section 26.20

    Section 26.20, which is unchanged from the December 11, 2008 
regulations, explains the rule's purpose to implement the certification 
procedure for chapter 154.

Section 26.21

    Section 26.21, which is also unchanged from the December 11, 2008 
regulations, defines certain terms used in chapter 154 and the 
regulations.
    Under 28 U.S.C. 2265(a), a certification request must be made by 
``an appropriate State official.'' Prior to the 2006 amendments to 
chapter 154, Federal courts entertaining habeas corpus applications by 
State prisoners under sentence of death would decide which set of 
habeas corpus procedures applied--chapter 153 or chapter 154 of title 
28--and State attorneys general responsible for such litigation could 
request determinations that their States had satisfied the requirements 
for the applicability of chapter 154. The 2006 amendments to chapter 
154 were not intended to disable the State attorneys general from their 
pre-existing role in this area and State attorneys general continue in 
most instances to be the officials with the capacity and motivation to 
seek chapter 154 certification for their States. See 73 FR at 75329-30. 
Section 26.21 of the rule accordingly provides that the appropriate 
official to seek chapter 154 certification is normally the State 
attorney general. In those few States, however, where the State 
attorney general does not have responsibilities relating to Federal 
habeas corpus litigation, the Chief Executive of the State will be 
considered the appropriate State official to make a submission on 
behalf of the State.
    Section 26.21 defines ``State postconviction proceedings'' as 
``collateral proceedings in State court, regardless of whether the 
State conducts such proceedings after or concurrently with direct State 
review.'' Collateral review normally takes place following the 
completion of direct review of the judgment, but some States have 
special procedures for capital cases in which collateral proceedings 
and direct review may take place concurrently. Formerly separate 
provisions for the application of chapter 154 in States with ``unitary 
review'' procedures (concurrent collateral and direct review) were 
replaced by the 2006 amendments with provisions that permit chapter 154 
certification for all States under uniform standards, regardless of 
their timing of collateral review vis-a-vis direct review. Compare 28 
U.S.C. 2261(b), 2265 (2006) (as amended by the USA PATRIOT Improvement 
and Reauthorization Act of 2005), with 28 U.S.C. 2261(b), 2265 (2000) 
(as enacted by AEDPA); see 152 Cong. Rec. S1620 (daily ed. Mar. 2, 
2006) (remarks of Sen. Kyl) (explaining that the current provisions 
simplify the chapter 154 qualification standards, ``which obviates the 
need for separate standards for those States that make direct and 
collateral review into separate vehicles and those States with unitary 
procedures'').
    The definition of ``State postconviction proceedings'' in the rule 
reflects the underlying objective of chapter 154 to provide expedited 
Federal habeas corpus review in capital cases arising in States that 
have gone beyond the constitutional requirement of appointing counsel 
for indigents at trial and on appeal by extending the appointment of 
counsel to indigent capital defendants in State collateral proceedings. 
See 73 FR at 75332-33, 75337 (reviewing relevant legislative and 
regulatory history). The provisions of chapter 154, as well as its 
legislative history, reflect the understanding of ``postconviction 
proceedings'' as not encompassing all proceedings that occur after 
conviction (e.g., sentencing proceedings, direct review), but rather as 
referring to collateral proceedings. See 28 U.S.C. 2261(e) (providing 
that ineffectiveness or incompetence of counsel during postconviction 
proceedings in a capital case cannot be a ground for relief in a 
Federal habeas corpus proceeding); 28 U.S.C. 2263(a), (b)(2) (180-day 
time limit for Federal habeas filing under chapter 154 starts to run 
``after final State court affirmance of the conviction and sentence on 
direct review or the expiration of the time for seeking such review'' 
subject to tolling ``from the date on which the first petition for 
post-conviction review or other collateral relief is filed until the 
final State court disposition of such petition''); 152 Cong. Rec. 
S1620, 1624-25 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) 
(explaining that chapter 154 provides incentives for States to provide 
counsel in State postconviction proceedings, equated to collateral 
proceedings); 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 2005) 
(extension of remarks of Rep. Flake) (same understanding); see also, 
e.g., Murray v. Giarratano, 492 U.S. 1 (1989) (equating postconviction 
and collateral proceedings).

Section 26.22

    Section 26.22 sets out the requirements for certification that a 
State must meet to qualify for the application of chapter 154. These 
are the requirements in 28 U.S.C. 2261(c)-(d) and 2265(a)(1).
Paragraph (a) of Sec.  26.22--Appointment of Counsel
    Paragraph (a) of Sec.  26.22 sets out the requirements of chapter 
154 concerning appointment of counsel that appear in 28 U.S.C. 2261(c)-
(d).
Paragraph (b) of Sec.  26.22--Competent Counsel
    Paragraph (b) of Sec.  26.22 explains how States may satisfy the 
requirement to provide for appointment of ``competent counsel'' and to 
provide ``standards of competency'' for such appointments. 28 U.S.C. 
2265(a)(1)(A), (C).
    The corresponding portion of the December 11, 2008 regulations 
construed the reference to appointment of ``competent counsel'' in 
section 2265(a)(1)(A) as a cross-reference to counsel meeting the 
competency standards provided by the State pursuant to section 
2265(a)(1)(C). It accordingly treated the definition of such standards 
as a matter of State discretion, not subject to further review by the 
Attorney General. See 73 FR at 75331. However, these provisions may 
also reasonably be construed as permitting the Attorney General to 
require a threshold of minimum counsel competency, while recognizing 
substantial State discretion in setting counsel competency standards. 
See generally Memorandum for the Attorney General from David J. Barron, 
Acting Assistant Attorney General, Office of Legal Counsel, Re: The 
Scope of the Attorney General's Authority in Certifying Whether a State 
Has Satisfied the Requirements for Appointment of Competent Post-
Conviction Counsel in Chapter 154 of Title 28, United States Code (Dec. 
16, 2009), available at http://www.justice.gov/olc/. The latter 
understanding is supported by cases interpreting chapter 154, see, 
e.g., Spears v. Stewart, 283 F.3d 992, 1013 (9th Cir. 2002) 
(recognizing that ``Congress * * * intended the states to have 
substantial discretion to determine the substance of the competency

[[Page 11708]]

standards'' under chapter 154 while still reviewing the adequacy of 
such standards), and by the original Powell Committee proposal from 
which many features of chapter 154 ultimately derive, see 135 Cong. 
Rec. 24692, 24696 (Oct. 16, 1989). This understanding is adopted in 
Sec.  26.22(b) of the proposed rule.
    The specific minimum standards set forth in paragraph (b) are based 
on judgments by Congress in federal laws concerning adequate capital 
counsel competency standards and on judicial interpretation of the 
counsel competency requirements of chapter 154. Three broad options are 
provided for States to satisfy this requirement--an option involving an 
experience requirement derived from the standard for appointment of 
counsel in Federal court proceedings in capital cases (paragraph 
(b)(1)); an option involving qualification standards set in a manner 
consistent with relevant portions of the Innocence Protection Act 
(paragraph (b)(2)); and an option of assuring an appropriate level of 
proficiency in other ways, such as by requiring some combination of 
experience and training (paragraph (b)(3)).
Option 1: Sec.  26.22(b)(1)--The Competency Standards for Federal Court 
Proceedings
    As provided in paragraph (b)(1) of Sec.  26.22, a State may satisfy 
chapter 154's requirement relating to counsel competency by requiring 
appointment of counsel ``who have been admitted to the bar for at least 
five years and have at least three years of felony litigation 
experience.'' This is based on the standard for appointed counsel in 
capital case proceedings in Federal court. See 18 U.S.C. 3599(a)-(e). 
Because Congress has determined that such a counsel competency standard 
is adequate for capital cases in Federal court proceedings, including 
postconviction proceedings, see id. Sec.  3599(a)(2), it will also be 
considered adequate for chapter 154 purposes when such cases are at the 
stage of State postconviction review.
    The counsel competency standards for Federal court proceedings in 
capital cases under 18 U.S.C. 3599 do not require adherence to the 
five-year/three-year experience requirement in all cases, but provide 
that the court ``for good cause, may appoint another attorney whose 
background, knowledge, or experience would otherwise enable him or her 
to properly represent the defendant,'' with due consideration of the 
seriousness of the penalty (i.e., capital punishment) and the nature of 
the litigation. Id. Sec.  3599(d). For example, a court might consider 
it appropriate to appoint an attorney who is a law professor with 
expertise in capital punishment law and training in capital 
postconviction litigation to represent a prisoner under sentence of 
death, even if the attorney has less than three years of felony 
litigation experience. The rule in paragraph (b)(1) accordingly does 
not require the imposition of a five-year/three-year minimum experience 
requirement in all cases, but allows States that generally impose such 
a requirement to permit the appointment of other counsel who would 
qualify for appointment under the standards of 18 U.S.C. 3599, i.e., 
those whose background, knowledge, or experience would otherwise enable 
them to properly represent prisoners under sentence of death 
considering the seriousness of the penalty and the nature of the 
litigation. This is reflected in the language in paragraph (b)(1) 
allowing appointment of counsel ``who would otherwise qualify for 
appointment pursuant to the standards for Federal habeas corpus 
proceedings reviewing State capital cases under 18 U.S.C. 3599.''
Option 2: Sec.  26.22(b)(2)--The Innocence Protection Act Standards
    Paragraph (b)(2) in Sec.  26.22 sets forth a second option for 
States to satisfy the counsel competency requirements of chapter 154, 
specifically, by setting qualification standards for appointment of 
postconviction capital counsel in a manner consistent with the 
Innocence Protection Act (IPA), 42 U.S.C. 14163-14163e. The IPA directs 
the Attorney General to provide grants to States to create or improve 
``effective system[s] for providing competent legal representation'' in 
capital cases, 42 U.S.C. 14163(c)(1), and provides a definition of 
``effective system'' that is largely based on elements of the American 
Bar Association Guidelines for the Appointment and Performance of 
Defense Counsel in Death Penalty Cases (rev. ed. Feb. 2003) (ABA 
Guidelines), 42 U.S.C. 14163(e). The IPA specifies that such effective 
systems are to include appointment of capital counsel (i) by a public 
defender program, (ii) by an entity composed of individuals with 
demonstrated knowledge and expertise in capital cases (other than 
current prosecutors) that is established by statute or by the highest 
State court with criminal case jurisdiction, or (iii) by the court 
appointing qualified attorneys from a roster maintained by a State or 
regional selection committee or similar entity pursuant to a pre-
existing statutory procedure. 42 U.S.C. 14163(e)(1).
    Under the IPA requirements, the appointing authority or an 
appropriate designated entity must ``establish qualifications for 
attorneys who may be appointed to represent indigents in capital 
cases.'' 42 U.S.C. 14163(e)(2)(A). The IPA does not prescribe the 
content of these qualifications but assumes that the specifications 
regarding the nature of the appointment or selection authority and the 
associated requirements for establishment of qualifications can be 
relied on to provide appropriate competency standards. Paragraph (b)(2) 
in Sec.  26.22 follows this legislative judgment in relation to States' 
satisfaction of the counsel competency requirements of chapter 154. 
Thus, a State's capital counsel mechanism will be deemed adequate for 
purposes of chapter 154's counsel competency requirements if it 
provides for the appointment of counsel in State postconviction 
proceedings in capital cases in a manner consistent with 42 U.S.C. 
14163(e)(1) and establishes standards of competency for such counsel in 
a manner consistent with 42 U.S.C. 14163(e)(2)(A).
Option 3: Sec.  26.22(b)(3)--Other Standards Reasonably Assuring 
Proficiency
    In enacting chapter 154, ``Congress did not envision any specific 
competency standards but, rather, intended the states to have 
substantial discretion to determine the substance of the competency 
standards.'' Spears, 283 F.3d at 1013 (citing 177 Cong. Rec. S3191, 
S3220 (daily ed. Mar. 13, 1991)). The options described in paragraphs 
(b)(1) and (b)(2) in Sec.  26.22 accordingly do not exhaust the means 
by which States may satisfy chapter 154's requirements concerning 
counsel competency. Indeed, Congress in formulating chapter 154 
rejected a recommendation that States uniformly be required to satisfy 
the standards for Federal court proceedings in capital cases that 
currently appear in 18 U.S.C. 3599, see 73 FR at 75331, and in amending 
chapter 154 in 2006 Congress did not modify chapter 154 to require 
adherence by States to the IPA standards that had been enacted in 2004 
but rather reenacted the more general language of chapter 154 relating 
to counsel competency.
    Consequently, as provided in paragraph (b)(3) in Sec.  26.22, the 
Attorney General will consider whether a State's counsel competency 
standards reasonably assure appointment of counsel with a level of 
proficiency appropriate for State postconviction litigation in capital 
cases, even if they do not meet the particular criteria set

[[Page 11709]]

forth in paragraph (b)(1) or (b)(2). As in the courts' consideration of 
the adequacy of State competency standards prior to the 2006 amendments 
to chapter 154, no definite formula can be prescribed for this review, 
and the Attorney General will assess such State mechanisms 
individually. Measures that will be deemed relevant include standards 
of experience, knowledge, skills, training, education, or combinations 
thereof that a State requires attorneys to meet in order to be eligible 
for appointment in State capital postconviction proceedings. Cf. 18 
U.S.C. 3599(d) (allowing appointment of counsel whose background, 
knowledge, or experience would otherwise enable such counsel to 
properly represent the defendant); Spears, 283 F.3d at 1012-13 (finding 
that competency standards involving combination of experience, 
proficiency, and education were adequate under chapter 154); ABA 
Guidelines Sec. Sec.  5.1.B.2, 8.1.B, pp. 35, 46 (recommending skill 
and training requirements for capital counsel). Also, the rule in 
paragraphs (b)(1) and (b)(2) of Sec.  26.22 identifies particular 
approaches that will be considered adequate, specifically, those of the 
Federal capital counsel statute (18 U.S.C. 3599) and of the Innocence 
Protection Act (42 U.S.C. 14163(e)(1), (2)(A)). These approaches 
accordingly may serve as benchmarks, and States' adoption of competency 
requirements that are similar or that are likely to result in even 
higher levels of proficiency will weigh in favor of a finding of 
adequacy for purposes of chapter 154. As indicated in the prefatory 
language in paragraph (b) of Sec.  26.22, State capital counsel 
mechanisms will be deemed adequate in relation to counsel competency if 
they meet or exceed the standards identified in the paragraph. States 
will not be penalized for going beyond the minimum required by the 
rule. Thus, for example, in relation to paragraph (b)(1), State 
competency standards will be considered sufficient if they require, 
e.g., five years of felony litigation experience rather than three, 
uniform satisfaction of the five-year/three-year experience requirement 
rather than allowing some exception as in 18 U.S.C. 3599(d), or 
training requirements for appointment in addition to the specified 
experience requirement.
    The rule does not require that all counsel in a State qualify under 
the same standard. Alternative standards may be used so long as the 
State mechanism requires that all counsel satisfy some standard 
qualifying under paragraph (b). Cf. 18 U.S.C. 3599(d) (allowing 
exceptions to categorical experience requirement); Spears, 283 F.3d at 
1013 (finding that alternative standards are allowed under chapter 
154). Hence, for example, a State system could pass muster by requiring 
that appointed counsel either satisfy an experience standard sufficient 
under paragraph (b)(1) or satisfy an alternative standard sufficient 
under paragraph (b)(3) involving more limited experience but an 
additional training requirement.
Paragraph (c) of Sec.  26.22--Compensation of Counsel
    Paragraph (c) of Sec.  26.22 explains how a State may satisfy the 
requirement that it have established a mechanism for the compensation 
of appointed counsel. 28 U.S.C. 2265(a)(1)(A). The corresponding 
portion of the December 11, 2008 regulations assumed that levels of 
compensation for purposes of chapter 154 were a matter of State 
discretion, not subject to review by the Attorney General, because the 
statute refers simply to ``compensation'' and imposes no further 
requirement that the authorized compensation be ``adequate'' or 
``reasonable.'' See 73 FR at 75331-32. However, the broader statutory 
context is the requirement that the State establish a mechanism ``for 
the appointment [and] compensation * * * of competent counsel.'' 28 
U.S.C. 2265(a)(1)(A). This requirement reflects a determination by 
Congress that reliance on unpaid volunteers to represent indigent 
prisoners under sentence of death is insufficient, and a State 
mechanism affording inadequate compensation could similarly fall short 
in ensuring the availability of competent counsel for appointment. 
Hence, when a State relies on a compensation incentive to secure 
competent counsel, chapter 154 is reasonably construed to permit the 
Attorney General to review the adequacy of authorized compensation. 
This understanding is adopted in Sec.  26.22(c) of the proposed rule.
    Paragraph (c)(1) in Sec.  26.22 describes a number of possible 
compensation standards that will be considered adequate for purposes of 
chapter 154, generally using as benchmarks the authorizations for 
compensation of capital counsel that have been deemed adequate in other 
Acts of Congress.
    The first option, appearing in paragraph (c)(1)(A), is compensation 
comparable to that authorized by Congress for representation in Federal 
habeas corpus proceedings reviewing State capital cases. 18 U.S.C. 
3599(g)(1). This level of compensation should similarly be adequate to 
ensure the availability of competent counsel for appointment in such 
cases at the stage of State postconviction review.
    The second option, appearing in paragraph (c)(1)(B), is 
compensation comparable to that of retained counsel who meet competency 
standards sufficient under paragraph (b). The Innocence Protection Act 
and the ABA Guidelines similarly endorse reliance on market rates for 
legal representation to provide adequate compensation for appointed 
capital counsel. See 42 U.S.C. 14163(e)(2)(F)(ii)(II); ABA Guidelines 
Sec.  9.1.B.3, p. 49. Compensation sufficient to induce competent 
attorneys to carry out such representation for hire should likewise be 
sufficient to attract competent attorneys to accept appointments for 
such representation.
    The third option, appearing in paragraph (c)(1)(C), is compensation 
comparable to that of appointed counsel in State appellate or trial 
proceedings in capital cases. Cf. 18 U.S.C. 3599(g)(1) (authorization 
for compensation of capital counsel not differentiating between 
compensation at different stages of representation). The compensation 
afforded at the stages of trial and appeal must be sufficient to secure 
competent attorneys to provide representation because effective legal 
representation of indigents is constitutionally required at those 
stages. Comparable compensation should accordingly be sufficient for 
that purpose at the postconviction stage.
    The fourth option, appearing in paragraph (c)(1)(D), is 
compensation comparable to that of attorneys representing the State in 
State postconviction proceedings in capital cases. This option also 
follows the Innocence Protection Act and the ABA Guidelines, which 
provide that capital counsel employed by defender organizations should 
be compensated on a salary scale commensurate with the salary scale of 
prosecutors in the jurisdiction. 42 U.S.C. 14163(e)(2)(F)(ii)(I); ABA 
Guidelines Sec.  9.1.B.2, p. 49. The rule allows this approach for 
compensation of both public defenders and private counsel, but 
recognizes that private defense counsel may have to pay from their own 
pockets overhead expenses that publicly employed prosecutors do not 
bear. The rule accordingly specifies that, if paragraph (c)(1)(D) is 
relied on to justify the level of compensation authorized for private 
counsel, the compensation standard should take account of overhead 
costs (if any) that are not otherwise payable as reasonable litigation 
expenses. Cf. Baker v. Corcoran, 220 F.3d 276, 285-86 (4th Cir. 2000) 
(finding that compensation resulting in substantial losses to

[[Page 11710]]

appointed counsel was inadequate under chapter 154).
    In comparing a State's compensation standards to the benchmarks 
identified in paragraph (c)(1), both hourly rates and overall limits on 
compensation will be taken into account. For example, under paragraph 
(c)(1)(C), suppose that State law authorizes the same hourly rate for 
compensation of appointed capital counsel at the appellate stage and in 
postconviction proceedings, but it specially imposes a low overall 
limit on compensable hours at the postconviction stage. The 
compensation authorized at the respective stages may then not be 
comparable in any realistic sense, and the objective of ensuring the 
availability of competent counsel for postconviction representation may 
not be realized, because counsel who accepted such representation would 
effectively be required to function as uncompensated volunteers to the 
extent they needed to work beyond the maximum number of compensable 
hours. This does not mean that State compensation provisions will be 
deemed inadequate if they specially prescribe presumptive limits on 
overall compensation at the postconviction stage, but comparability to 
the paragraph (c)(1) benchmarks may then depend on whether the State 
provides means for authorizing compensation beyond the presumptive 
maximum where necessary. Cf. Spears, 283 F.3d at 1015 (approving a 
presumptive 200-hour limit under chapter 154 where compensation was 
available for work beyond that limit if reasonable); Mata v. Johnson, 
99 F.3d 1261, 1266 (5th Cir. 1996), vacated in part on reh'g on other 
grounds, 105 F.3d (5th Cir. 1997) (overall $7500 limit on compensation 
was not facially inadequate under chapter 154 and was not shown 
inadequate in the particular case).
    As with the counsel competency standards of paragraph (b), the 
counsel compensation standards of paragraph (c)(1) provide only a floor 
that States are free to exceed, and not all counsel must be compensated 
in conformity with a single standard. Rather, a State may adopt 
alternative standards, each comparable to or exceeding some benchmark 
identified in paragraph (c)(1), and provide for compensation of 
different counsel or classes thereof in conformity with different 
standards. For example, a State might provide for representation of 
some indigent capital defendants in postconviction proceedings by 
appointed private counsel and some by public defender personnel, 
compensate the private counsel in conformity with paragraph (c)(1)(C), 
and compensate the public defender counsel in conformity with paragraph 
(c)(1)(D).
    The rule recognizes that the compensation options set out in 
paragraph (c)(1) of Sec.  26.22 are not necessarily the only means by 
which a State may provide competent counsel. State compensation 
provisions for capital counsel have been deemed adequate for purposes 
of chapter 154 and other Federal laws independent of any comparison to 
the benchmarks in paragraph (c)(1). See 42 U.S.C. 14163(e)(2)(F)(i) 
(State may compensate under qualifying statutory procedure predating 
the Innocence Protection Act); Spears, 283 F.3d at 1015 (State could 
compensate at ``a rate of up to $100 an hour, a rate that neither 
Petitioner nor amici argue was unreasonable''). Also, a State may 
secure representation for indigent capital defendants in postconviction 
proceedings by means not dependent on any special financial incentive 
for accepting appointments, such as by providing salaried public 
defender personnel to carry out such assignments as part of their 
duties. Accordingly, under paragraph (c)(2) in Sec.  26.22, capital 
counsel mechanisms involving compensation provisions that do not 
satisfy paragraph (c)(1) are approvable if they are otherwise 
reasonably designed to ensure the availability of competent counsel.
Paragraph (d) of Sec.  26.22--Payment of Reasonable Litigation Expenses
    Paragraph (d) of Sec.  26.22 incorporates the requirement in 28 
U.S.C. 2265(a)(1)(A) to provide for the payment of reasonable 
litigation expenses. An inflexible cap on reimbursable litigation 
expenses in capital postconviction proceedings could contravene this 
requirement by foreclosing the payment of costs incurred by counsel, 
even if determined by the court to be reasonably necessary. However, 
the requirement does not foreclose a presumptive limit if the State 
provides means for authorizing payment of litigation expenses beyond 
the limit where necessary. Cf. 18 U.S.C. 3599(f), (g)(2) (establishing 
presumptive $7500 limit on payment for litigation expenses in federal 
court proceedings in capital cases, with authority for chief judge or 
delegee to approve higher amounts); Mata, 99 F.3d at 1266 (concluding 
that overall $2500 limit on payment of litigation expenses was not 
facially inadequate under chapter 154 and was not shown to be 
inadequate in the particular case).

Section 26.23

    Section 26.23 in the rule sets out the mechanics of the 
certification process for States seeking to opt in to chapter 154.
    Paragraph (a) provides that an appropriate State official may 
request in writing that the Attorney General determine whether the 
State meets the requirements for chapter 154 certification. Paragraph 
(b) provides that the Attorney General will make the request available 
on the Internet and solicit public comment on the request by publishing 
a notice in the Federal Register. It requires Internet availability 
because State requests for certification may include supporting 
materials not readily reproducible or viewable in the Federal Register, 
such as copies of State statutes, rules, and judicial decisions bearing 
on the State's satisfaction of chapter 154's requirements for 
certification.
    As provided in paragraph (c), the Attorney General will review the 
State's request, including consideration of timely public comments 
received in response to the Federal Register notice. The Attorney 
General will decide whether the State has satisfied the requirements 
for chapter 154 certification and will publish the certification in the 
Federal Register if certification is granted. The certification will 
include a determination of the date the capital counsel mechanism 
qualifying the State for certification was established, as that date is 
the effective date of the certification. 28 U.S.C. 2265(a)(2).
    Paragraph (d) addresses the effect of changes or alleged changes in 
a State's capital counsel mechanism after that mechanism has been 
certified by the Attorney General. The paragraph first addresses 
situations involving changes or alleged changes in a State's capital 
counsel mechanism prior to State postconviction proceedings in a 
capital case. Chapter 154's expedited Federal habeas corpus procedures 
are available only in cases in which both of two statutory conditions 
are met: (i) The State's capital counsel mechanism has been certified 
by the Attorney General, 28 U.S.C. 2261(b)(1), and (ii) ``counsel was 
appointed pursuant to that mechanism''--i.e., the mechanism certified 
by the Attorney General--unless the petitioner ``validly waived counsel 
* * * [or] retained counsel * * * or * * * was found not to be 
indigent,'' 28 U.S.C. 2261(b)(2). The first sentence of paragraph (d) 
therefore notes that certification by the Attorney General under 
chapter 154 reflects the Attorney General's determination that the 
State capital counsel mechanism examined in the Attorney General's 
review satisfies chapter 154's requirements. If a State later

[[Page 11711]]

discontinues that mechanism before counsel is appointed in a given 
State postconviction proceeding, then counsel in that case will not 
have been ``appointed pursuant to'' the mechanism that was approved by 
the Attorney General and chapter 154 would accordingly be inapplicable. 
Similarly, if a State later changes or is alleged to have changed its 
capital counsel mechanism, then chapter 154 may lead to litigation in 
Federal habeas courts, with those courts responsible for deciding 
whether the State has actually changed its mechanism and, if so, 
whether the change means that counsel (even if appointed) was appointed 
pursuant to what is in effect a new and uncertified mechanism, rather 
than the mechanism certified by the Attorney General.
    To avoid such litigation, the second sentence of paragraph (d) 
provides that a State may seek a new certification by the Attorney 
General if it changes or is alleged to have changed a previously 
certified capital counsel mechanism. If a State wishes to improve on a 
certified capital counsel mechanism, then certification by the Attorney 
General of the new or revised mechanism will allow the State to avoid 
Federal habeas court litigation over whether chapter 154 is applicable 
to cases involving appointments made pursuant to that mechanism. 
Similarly, if legal questions are raised about the continued 
applicability of chapter 154 based on changes or alleged changes in a 
certified capital counsel mechanism, a State may seek a new 
certification by the Attorney General that its current mechanism 
satisfies chapter 154's requirements, ensuring the continued 
applicability of chapter 154's expedited Federal habeas corpus 
procedures. By seeking a new certification of a new or revised capital 
counsel mechanism, a State may ensure that it is the Attorney General, 
subject to review by the D.C. Circuit Court of Appeals, who determines 
whether its capital counsel mechanism is in present compliance with 
chapter 154's requirements, see 28 U.S.C. 2261(b)(1), 2265(c)(2), and 
avoid litigation over that matter in the Federal habeas courts.
    The final sentence in paragraph (d) states that subsequent changes 
in a State's capital counsel mechanism do not affect the applicability 
of chapter 154 in cases in which a mechanism certified by the Attorney 
General existed throughout State postconviction proceedings in the 
case. For example, suppose that the Attorney General certifies a 
State's capital counsel mechanism in 2012, the State postconviction 
proceedings in a capital case are carried out in 2013 and 2014 and 
counsel is appointed in those proceedings pursuant to the certified 
mechanism, and Federal habeas corpus proceedings in the case commence 
in 2015. Suppose further that the State makes some change in 2015 to 
its counsel competency or compensation standards. Because a certified 
capital counsel mechanism would have been in place throughout State 
postconviction review, the prerequisites for expedited Federal habeas 
corpus review under chapter 154 would be satisfied, see 28 U.S.C. 
2261(b). That result would not be affected by later changes in the 
State's postconviction capital counsel mechanism.

Regulatory Certifications

Executive Order 12866--Regulatory Planning and Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), and, accordingly, this rule has been reviewed by 
the Office of Management and Budget. The determination that this is a 
significant regulatory action, however, does not reflect a conclusion 
that it is ``likely to result in a rule that may * * * [h]ave an annual 
effect on the economy of $100 million or more'' or other adverse 
effects as described in section 3(f)(1) of the Executive Order. This 
rule will have no economic effect unless particular States (i) decide, 
in their discretion, that any costs entailed in meeting the chapter 154 
capital counsel requirements are offset or justified by resulting cost 
reductions or other benefits to the State under chapter 154, and (ii) 
accordingly undertake to make any changes needed in their capital 
counsel systems to meet the chapter 154 requirements and apply to the 
Attorney General for certification.
    If States decide to apply for chapter 154 certification, their 
resulting costs will mainly depend on (i) the number of capital cases 
these States litigate in State postconviction proceedings, and (ii) the 
incremental difference (if any) between their current per-case capital 
litigation costs and the corresponding costs under a chapter 154-
compliant system. Regarding the number of capital cases, at the end of 
2009, 36 states held 3,118 prisoners under sentence of death. See 
Bureau of Justice Statistics, Office Justice Programs, U.S. Department 
of Justice, Capital Punishment, 2009--Statistical Tables at 8, table 4 
(Dec. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf. Regarding the incremental costs of satisfying the chapter 
154 standards, States accounting for the great majority of capital 
cases in the United States already provide for appointment of counsel 
in State postconviction proceedings. These States may still fall short 
of satisfying the chapter 154 standards relating to payment of 
litigation expenses or compensation of counsel. However, the costs 
necessary to correct such deficiencies would be limited to the 
difference between existing caps and any higher amounts necessary to 
defray reasonable litigation expenses and to secure competent attorneys 
for appointment, and this rule affords States a variety of options that 
may minimize any resulting increase in costs.
    Even assuming that all States will upgrade their postconviction 
capital counsel mechanisms to the extent necessary to satisfy the 
proposed rule, and that the number of capital cases pending at any time 
in State postconviction proceedings is as high as 2,000, the total cost 
for the States could not reach $100 million annually unless the average 
increase in litigation costs were $50,000 each year for each case in 
State postconviction proceedings. There is no reason to believe that 
costs would increase to that degree, and any increased costs at that 
stage would be subject to offset by savings resulting from chapter 
154's expedited procedures in subsequent Federal habeas corpus review. 
See 28 U.S.C. 2262, 2264, 2266. Moreover, because the States would more 
fully defray the costs of representing indigent capital defendants in 
State postconviction proceedings, there would be less need for 
representation by private counsel on a pro bono basis, often arranged 
through postconviction capital defense projects. Thus, State costs also 
would be offset by reduced costs for private entities and individuals 
who otherwise would provide representation, reducing the overall 
economic effect. For the foregoing reasons, it is not expected that 
this rule will or may have an annual effect on the economy of $100 
million or more.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. It provides only a framework for those 
States that wish to qualify for the benefits of the expedited

[[Page 11712]]

habeas procedures of chapter 154 of title 28 of the United States Code. 
Therefore, in accordance with Executive Order 13132, it is determined 
that this rule does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This rule provides 
only a framework for those States that wish to qualify for the benefits 
of the expedited habeas procedures of chapter 154 of title 28 of the 
United States Code.

Unfunded Mandates Reform Act of 1995

    This rule will not result in aggregate expenditures by state, local 
and tribal governments or by the private sector of $100,000,000 or more 
in any one year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 26

    Law enforcement officers, Prisoners.

    Accordingly, for the reasons set forth in the preamble, part 26 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 26--DEATH SENTENCES PROCEDURES

    1. The authority citation for part 26 continues to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509, 
510, 2261, 2265.

    2. Add Subpart B to read as follows:

Subpart B--Certification Process for State Capital Counsel Systems

Sec.
26.20 Purpose.
26.21 Definitions.
26.22 Requirements.
26.23 Certification process.

Sec.  26.20  Purpose.

    Sections 2261(b)(1) and 2265(a) of title 28 of the United States 
Code require the Attorney General to certify whether a State has a 
mechanism for providing legal representation to indigent prisoners in 
State postconviction proceedings in capital cases that satisfies the 
requirements of chapter 154 of title 28. If certification is granted, 
sections 2262, 2263, 2264, and 2266 of chapter 154 of title 28 apply in 
relation to Federal habeas corpus review of capital cases from the 
State. Subsection (b) of 28 U.S.C. 2265 directs the Attorney General to 
promulgate regulations to implement the certification procedure under 
subsection (a) of that section.

Sec.  26.21  Definitions.

    For purposes of this part, the term--
    Appropriate state official means the State Attorney General, except 
that, in a State in which the State Attorney General does not have 
responsibility for Federal habeas corpus litigation, it means the Chief 
Executive thereof.
    State postconviction proceedings means collateral proceedings in 
State court, regardless of whether the State conducts such proceedings 
after or concurrently with direct State review.

Sec.  26.22  Requirements.

    The Attorney General will certify that a State meets the 
requirements for certification under 28 U.S.C. 2261 and 2265 if the 
Attorney General determines that the State has established a mechanism 
for the appointment of counsel for indigent prisoners under sentence of 
death in State postconviction proceedings that satisfies the following 
standards:
    (a) As provided in 28 U.S.C. 2261(c) and (d), the mechanism must 
offer to all such prisoners postconviction counsel, who may not be 
counsel who previously represented the prisoner at trial unless the 
prisoner and counsel expressly requested continued representation, and 
the mechanism must provide for the entry of an order by a court of 
record--
    (1) Appointing one or more attorneys as counsel to represent the 
prisoner upon a finding that the prisoner is indigent and accepted the 
offer or is unable competently to decide whether to accept or reject 
the offer;
    (2) Finding, after a hearing if necessary, that the prisoner 
rejected the offer of counsel and made the decision with an 
understanding of its legal consequences; or
    (3) Denying the appointment of counsel, upon a finding that the 
prisoner is not indigent.
    (b) The mechanism must provide for appointment of competent counsel 
as defined in State standards of competency for such appointments that 
meet or exceed any of the following:
    (1) Appointment of counsel who have been admitted to the bar for at 
least five years and have at least three years of felony litigation 
experience or who would otherwise qualify for appointment pursuant to 
the standards for Federal habeas corpus proceedings reviewing State 
capital cases under 18 U.S.C. 3599;
    (2) Appointment of counsel meeting qualification standards 
established in conformity with 42 U.S.C. 14163(e)(1), (2)(A); or
    (3) Appointment of counsel satisfying qualification standards that 
reasonably assure a level of proficiency appropriate for State 
postconviction litigation in capital cases.
    (c) The mechanism must provide for compensation of appointed 
counsel.
    (1) A State's provision for compensation will be deemed adequate if 
the authorized compensation is comparable to or exceeds--
    (i) The compensation of counsel appointed pursuant to 18 U.S.C. 
3599 in Federal habeas corpus proceedings reviewing capital cases from 
the State;
    (ii) The compensation of retained counsel in State postconviction 
proceedings in capital cases who meet State standards of competency 
sufficient under paragraph (b) of this section;
    (iii) The compensation of appointed counsel in State appellate or 
trial proceedings in capital cases; or
    (iv) The compensation of attorneys representing the State in State 
postconviction proceedings in capital cases, subject to adjustment for 
private counsel to take account of overhead costs not otherwise payable 
as reasonable litigation expenses.
    (2) Provisions for compensation not satisfying the criteria in 
paragraph (c)(1) of this section will be deemed adequate only if the 
State mechanism is otherwise reasonably designed to ensure the 
availability for appointment of counsel who meet State standards of 
competency sufficient under paragraph (b) of this section.
    (d) The mechanism must provide for payment of reasonable litigation 
expenses of appointed counsel, which may include presumptive limits on

[[Page 11713]]

payment only if means are authorized for payment of necessary expenses 
above such limits.

Sec.  26.23  Certification process.

    (a) An appropriate State official may request in writing that the 
Attorney General determine whether the State meets the requirements for 
certification under Sec.  26.22.
    (b) Upon receipt of a State's request for certification, the 
Attorney General will make the request publicly available on the 
Internet (including any supporting materials included in the request) 
and publish a notice in the Federal Register--
    (1) Indicating that the State has requested certification;
    (2) Identifying the Internet address at which the public may view 
the State's request for certification; and
    (3) Soliciting public comment on the request.
    (c) The State's request will be reviewed by the Attorney General. 
The review will include consideration of timely public comments 
received in response to the Federal Register notice under paragraph (b) 
of this section. The certification will be published in the Federal 
Register if certification is granted. The certification will include a 
determination of the date the capital counsel mechanism qualifying the 
State for certification was established.
    (d) A certification by the Attorney General reflects the Attorney 
General's determination that the State capital counsel mechanism 
reviewed under paragraph (c) of this section satisfies 28 U.S.C. 
chapter 154's requirements. A State may request a new certification by 
the Attorney General to ensure the continued applicability of chapter 
154 in cases in which State postconviction proceedings occur after a 
change or alleged change in the State's certified capital counsel 
mechanism. Changes in a State's capital counsel mechanism do not affect 
the applicability of chapter 154 in any case in which a mechanism 
certified by the Attorney General existed throughout State 
postconviction proceedings in the case.

    Dated: February 25, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-4800 Filed 3-2-11; 8:45 am]
BILLING CODE 4410-18-P
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