I

103D CONGRESS

1ST SESSION H. R. 696

Entitled the ‘‘Drug Kingpin Death Penalty Act’’.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 27, 1993

Mr. SOLOMON introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

Entitled the ‘‘Drug Kingpin Death Penalty Act’’.

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

3 SEC . SHORT TITLE.

4 This Act may be cited as the ‘‘Drug Kingpin Death

5 Penalty Act’’.

6 SEC. . DEATH PENALTY AUTHORIZATIONS AND PROCE7 DURES.

8 Title 18 of the United States Code is amended—

9 (1) by adding the following new chapter after

10 chapter 227:
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1 ‘‘CHAPTER 228—DEATH PENALTY

‘‘Sec.

‘‘3591. Sentence of death.

‘‘3592. Factors to be considered in determining whether a sentence of death is

justified.

‘‘3593. Special hearing to determine whether a sentence of death is justified.

‘‘3594. Imposition of a sentence of death.

‘‘3595. Review of a sentence of death.

‘‘3596. Implementation of sentence of death.

‘‘3597. Use of State facilities.

‘‘3598. Appointment of counsel.

‘‘3599. Collateral Attack on Judgment Imposing Sentence of Death.

2 ‘‘§ 3591. Sentence of death

3 ‘‘A defendant who has been found guilty of—

4 ‘‘(1) an offense referred to in section 408(c)(1)

5 of the Controlled Substances Act (21 U.S.C.

6 848(c)(1)), committed as part of a continuing crimi7 nal enterprise offense under the conditions described

8 in subsection (b) of that section;

9 ‘‘(2) an offense referred to in section 408(c)(1)

10 of the Controlled Substances Act (21 U.S.C.

11 848(c)(1)), committed as part of a continuing crimi12 nal enterprise offense under that section, where the

13 defendant is a principal administrator, organizer or

14 leader of such an enterprise, and the defendant, in

15 order to obstruct the investigation or prosecution of

16 the enterprise or an offense involved in the enter17 prise, attempts to kill or knowingly directs, advises,

18 authorizes, or assists another to attempt to kill any

19 public officer, juror, witness, or member of the fam20 ily or household of such a person; or
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1 ‘‘(3) an offense constituting a felony violation of

2 the Controlled Substances Act (21 U.S.C. 801 et

3 seq.), the Controlled Substances Import and Export

4 Act (21 U.S.C. 951 et seq.), or the Maritime Drug

5 Law Enforcement Act (46 U.S.C. App. 1901 et

6 seq.), where the defendant, intending to cause death

7 or acting with reckless disregard for human life, en8 gages in such a violation, and the death of another

9 person results in the course of the violation or from

10 the use of the controlled substance involved in the

11 violation;

12 shall be sentenced to death if, after consideration of the

13 factors set forth in section 3592 in the course of a hearing

14 held pursuant to section 3593, it is determined that impo15 sition of a sentence of death is justified: Provided, That

16 no person may be sentenced to death who was less than

17 eighteen years of age at the time of the offense: And pro18 vided further, That if a defendant described in section

19 3591 (b) or (c), is not sentenced to death, said defendant

20 shall be sentenced to life in prison.

21 ‘‘§ 3592. Factors to be considered in determining

22 whether a sentence of death is justified

23 ‘‘(a) MITIGATING FACTORS.—In determining wheth24 er a sentence of death is justified for an offense described

25 in section 3591, the jury, or if there is no jury, the court,
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1 shall consider each of the following mitigating factors and

2 determine which, if any, exist:

3 ‘‘(1) MENTAL CAPACITY.—The defendant’s

4 mental capacity to appreciate the wrongfulness of

5 his conduct or to conform his conduct to the require6 ments of law was significantly impaired, regardless

7 of whether the capacity was so impaired as to con8 stitute a defense to the charge.

9 ‘‘(2) DURESS.—The defendant was under un10 usual and substantial duress, regardless of whether

11 the duress was of such a degree as to constitute a

12 defense to the charge.

13 ‘‘(3) PARTICIPATION IN OFFENSE MINOR.—The

14 defendant is punishable as a principal (as defined in

15 section 2 of title 18 of the United States Code) in

16 the offense, which was committed by another, but

17 the defendant’s participation was relatively minor,

18 regardless of whether the participation was so minor

19 as to constitute a defense to the charge.

20 The jury, or if there is no jury, the court, shall consider

21 whether any other aspect of the defendant’s character or

22 record or any other circumstance of the offense that the

23 defendant may proffer as a mitigating factor exists.

24 ‘‘(b) AGGRAVATING FACTORS.—In determining

25 whether a sentence of death is justified for an offense de-
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1 scribed in section 3591, the jury, or if there is no jury,

2 the court, shall consider each of the following aggravating

3 factors and determine which, if any, exist—

4 ‘‘(1) PREVIOUS CONVICTION OF OFFENSE FOR

5 WHICH A SENTENCE OF DEATH OR LIFE IMPRISON6 MENT WAS AUTHORIZED.—The defendant has pre7 viously been convicted of another Federal or State

8 offense resulting in the death of a person, for which

9 a sentence of life imprisonment or death was author10 ized by statute.

11 ‘‘(2) PREVIOUS CONVICTIONS OF VIOLENT OF12 FENSES.—The defendant has previously been con13 victed of two or more Federal or State offenses, each

14 punishable by a term of imprisonment of more than

15 one year, committed on different occasions, involving

16 the infliction of, or attempted infliction, serious bod17 ily injury or death upon another person.

18 ‘‘(3) PREVIOUS CONVICTIONS OF DRUG OF19 FENSES.—The defendant has previously been con20 victed of two or more Federal or State offenses, each

21 punishable by a term of imprisonment of more than

22 one year, committed on different occasions, involving

23 the importation, manufacture, or distribution of a

24 controlled substance (as defined in section 102 of

25 the Controlled Substances Act (21 U.S.C. 802)).
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1 ‘‘(4) PREVIOUS CONVICTIONS OF VIOLENT

2 DRUG OFFENSES.—The defendant has previously

3 been convicted of a Federal or State offense, punish4 able by a term of imprisonment of more than one

5 year, involving the infliction of, or attempted inflic6 tion of, serious bodily injury or death upon another

7 person, and has previously been convicted of a Fed8 eral or State offense, committed on a different occa9 sion and punishable by a term of imprisonment of

10 more than one year, involving the importation, man11 ufacture, or distribution of a controlled substance

12 (as defined in section 102 of the Controlled Sub13 stances Act (21 U.S.C. 802)).

14 ‘‘(5) SERIOUS DRUG FELONY CONVICTION.—

15 The defendant has previously been convicted of an16 other Federal or State offense involving the manu17 facture, distribution, importation, or possession of a

18 controlled substance (as defined in section 102 of

19 the Controlled Substances Act (21 U.S.C. 802)) for

20 which a sentence of five or more years of imprison21 ment was authorized by statute.

22 ‘‘(6) USE OF FIREARM.—In committing the of23 fense, or in furtherance of a continuing criminal en24 terprise of which the offense was a part, the defend25 ant used a firearm or knowingly directed, advised,
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1 authorized, or assisted another to use a firearm, as

2 defined in section 921 of this title, to threaten, in3 timidate, assault, or injure a person.

4 ‘‘(7) DISTRIBUTION TO PERSONS UNDER TWEN5 TY-ONE.—The offense, or a continuing criminal en6 terprise of which the offense was a part, involved a

7 violation of section 405 of the Controlled Substances

8 Act (21 U.S.C. 845) which was committed directly

9 by the defendant or for which the defendant would

10 be liable under section 2 of this title.

11 ‘‘(8) DISTRIBUTION NEAR SCHOOLS.—The of12 fense, or a continuing criminal enterprise of which

13 the offense was a part, involved a violation of section

14 405A of the Controlled Substances Act (21 U.S.C.

15 845a) which was committed directly by the defend16 ant or for which the defendant would be liable under

17 section 2 of this title.

18 ‘‘(9) USING MINORS IN TRAFFICKING.—The of19 fense, or a continuing criminal enterprise of which

20 the offense was a part, involved a violation of section

21 405B of the Controlled Substances Act (21 U.S.C.

22 845b) which was committed directly by the defend23 ant or for which the defendant would be liable under

24 section 2 of this title.
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1 ‘‘(10) LETHAL ADULTERANT.—The offense in2 volved the importation, manufacture, or distribution,

3 of a controlled substance (as defined in section 102

4 of the Controlled Substances Act (21 U.S.C. 802))

5 mixed with a potentially lethal adulterant, and the

6 defendant was aware of the presence of the

7 adulterant.

8 The jury, or if there is no jury, the court, may consider

9 whether any other aggravating factors exist.

10 § 3593. Special hearing to determine whether a sen11 tence of death is justified

12 ‘‘(a) NOTICE BY THE GOVERNMENT.—Whenever the

13 Government intends to seek the death penalty for an of14 fense described in section 3591, the attorney for the Gov15 ernment, a reasonable time before the trial, or before ac16 ceptance by the court of a plea of guilty, or at such time

17 thereafter as the court may permit upon a showing of good

18 cause, shall sign and file with the court, and serve on the

19 defendant, a notice—

20 ‘‘(1) that the Government in the event of con21 viction will seek the sentence of death; and

22 ‘‘(2) setting forth the aggravating factor or fac23 tors enumerated in section 3592 and any other ag24 gravating factor not specifically enumerated in sec25 tion 3592, that the Government, if the defendant is
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1 convicted, will seek to prove as the basis for the

2 death penalty.

3 The court may permit the attorney for the government

4 to amend the notice upon a showing of good cause.

5 ‘‘(b) HEARING BEFORE A COURT OR JURY.—When

6 the attorney for the Government has filed a notice as re7 quired under subsection (a) and the defendant is found

8 guilty of an offense described in section 3591, the judge

9 who presided at the trial or before whom the guilty plea

10 was entered, or another judge if that judge is unavailable,

11 shall conduct a separate sentencing hearing to determine

12 the punishment to be imposed. Prior to such a hearing,

13 no presentence report shall be prepared by the United

14 States Probation Service, notwithstanding the provisions

15 of the Federal Rules of Criminal Procedure. The hearing

16 shall be conducted—

17 ‘‘(1) before the jury that determined the de18 fendant’s guilt;

19 ‘‘(2) before a jury impaneled for the purpose of

20 the hearing if—

21 ‘‘(A) the defendant was convicted upon a

22 plea of guilty;

23 ‘‘(B) the defendant was convicted after a

24 trial before the court sitting without a jury;
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1 ‘‘(C) the jury that determined the defend2 ant’s guilt was discharged for good cause; or

3 ‘‘(D) after initial imposition of a sentence

4 under this section, reconsideration of the sen5 tence under the section is necessary; or

6 ‘‘(3) before the court alone, upon motion of the

7 defendant and with the approval of the attorney for

8 the Government.

9 A jury impaneled pursuant to paragraph (2) shall consist

10 of twelve members, unless, at any time before the conclu11 sion of the hearing, the parties stipulate, with the approval

12 of the court, that it shall consist of a lesser number.

13 ‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC14 TORS.—At the hearing, information may be presented as

15 to—

16 ‘‘(1) any matter relating to any mitigating fac17 tor listed in section 3592 and any other mitigating

18 factor; and

19 ‘‘(2) any matter relating to any aggravating

20 factor listed in section 3592 for which notice has

21 been provided under subsection (a)(2) and (if infor22 mation is presented relating to such a listed factor)

23 any other aggravating factor for which notice has

24 been so provided.
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1 Information presented may include the trial transcript and

2 exhibits. Any other information relevant to such mitigat3 ing or aggravating factors may be presented by either the

4 Government or the defendant, regardless of its admissibil5 ity under the rules governing admission of evidence at

6 criminal trials, except that information may be excluded

7 if its probative value is outweighed by the danger of creat8 ing unfair prejudice, confusing the issues, or misleading

9 the jury. The attorney for the Government and for the

10 defendant shall be permitted to rebut any information re11 ceived at the hearing, and shall be given fair opportunity

12 to present argument as to the adequacy of the information

13 to establish the existence of any aggravating or mitigating

14 factor, and as to the appropriateness in that case of im15 posing a sentence of death. The attorney for the Govern16 ment shall open the argument. The defendant shall be per17 mitted to reply. The Government shall then be permitted

18 to reply in rebuttal. The burden of establishing the exist19 ence of an aggravating factor is on the Government, and

20 is not satisfied unless the existence of such a factor is es21 tablished beyond a reasonable doubt. The burden of estab22 lishing the existence of any mitigating factor is on the de23 fendant, and is not satisfied unless the existence of such

24 a factor is established by a preponderance of the evidence.
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1 ‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or

2 if there is no jury, the court, shall consider all the informa3 tion received during the hearing. It shall return special

4 findings identifying any aggravating factor or factors set

5 forth in section 3592 found to exist and any other aggra6 vating factor for which notice has been provided under

7 subsection (a) found to exist. A finding with respect to

8 a mitigating factor may be made by one or more members

9 of the jury, and any member of the jury who finds the

10 existence of a mitigating factor may consider such factor

11 established for purposes of this section regardless of the

12 number of jurors who concur that the factor has been es13 tablished. A finding with respect to any aggravating factor

14 must be unanimous. If no aggravating factor set forth in

15 section 3592 is found to exist, the court shall impose a

16 sentence other than death authorized by law.

17 ‘‘(e) RETURN OF A FINDING CONCERNING A SEN18 TENCE OF DEATH.—If an aggravating factor required to

19 be considered under section 3592(b) is found to exist, the

20 jury, or if there is no jury, the court, shall then consider

21 whether the aggravating factor or factors found to exist

22 outweigh any mitigating factor or factors. The jury, or if

23 there is no jury, the court, shall recommend a sentence

24 of death if it unanimously finds at least one aggravating

25 factor and no mitigating factor or if it finds one or more
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1 aggravating factors which outweigh any mitigating fac2 tors. In any other case, it shall not recommend a sentence

3 of death. The jury shall be instructed that it must avoid

4 any influence of sympathy, sentiment, passion, prejudice,

5 or other arbitrary factors in its decision, and should make

6 such a recommendation as the information warrants.

7 ‘‘(f) SPECIAL PRECAUTION TO ASSURE AGAINST

8 DISCRIMINATION.—In a hearing held before a jury, the

9 court, prior to the return of a finding under subsection

10 (e), shall instruct the jury that, in considering whether

11 a sentence of death is justified, it shall not consider the

12 race, color, religious beliefs, national origin, or sex of the

13 defendant or of any victim and that the jury is not to rec14 ommend a sentence of death unless it has concluded that

15 it would recommend a sentence of death for the crime in

16 question no matter what the race, color, religious beliefs,

17 national origin, or sex of the defendant or of any victim

18 may be. The jury, upon return of a finding under sub19 section (e), shall also return to the court a certificate,

20 signed by each juror, that consideration of the race, color,

21 religious beliefs, national origin, or sex of the defendant

22 or any victim was not involved in reaching his or her indi23 vidual decision and that the individual juror would have

24 made the same recommendation regarding a sentence for

25 the crime in question no matter what the race, color, reli-
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1 gious beliefs, national origin, or sex of the defendant or

2 any victim may be.

3 ‘‘§ 3594. Imposition of a sentence of death

4 ‘‘Upon the recommendation under section 3593(e)

5 that a sentence of death be imposed, the court shall sen6 tence the defendant to death. Otherwise the court shall

7 impose a sentence, other than death, authorized by law.

8 Notwithstanding any other provision of law, if the maxi9 mum term of imprisonment for the offense is life imprison10 ment, the court may impose a sentence of life imprison11 ment without the possibility of release or furlough.

12 ‘‘§ 3595. Review of a sentence of death

13 ‘‘(a) APPEAL.—In a case in which a sentence of death

14 is imposed, the sentence shall be subject to review by the

15 court of appeals upon appeal by the defendant. Notice of

16 appeal of the sentence must be filed within the time speci17 fied for the filing of a notice of appeal of the judgment

18 of conviction. An appeal of the sentence under this section

19 may be consolidated with an appeal of the judgment of

20 conviction and shall have priority over all other cases.

21 ‘‘(b) REVIEW.—The court of appeals shall review the

22 entire record in the case, including—

23 ‘‘(1) the evidence submitted during the trial;

24 ‘‘(2) the information submitted during the sen25 tencing hearing;
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1 ‘‘(3) the procedures employed in the sentencing

2 hearing; and

3 ‘‘(4) the special findings returned under section

4 3593(d).

5 ‘‘(c) DECISION AND DISPOSITION.—

6 ‘‘(1) If the court of appeals determines that—

7 ‘‘(A) the sentence of death was not im8 posed under the influence of passion, prejudice,

9 or any other arbitrary factor; and

10 ‘‘(B) the evidence and information support

11 the special findings of the existence of an ag12 gravating factor or factors;

13 it shall affirm the sentence.

14 ‘‘(2) In any other case, the court of appeals

15 shall remand the case for reconsideration under sec16 tion 3593 or for imposition of another authorized

17 sentence as appropriate.

18 ‘‘(3) The court of appeals shall state in writing

19 the reasons for its disposition of an appeal of sen20 tence of death under this section.

21 ‘‘§ 3596. Implementation of sentence of death

22 ‘‘(a) A person who has been sentenced to death pur23 suant to the provisions of this chapter shall be committed

24 to the custody of the Attorney General until exhaustion

25 of the procedures for appeal of the judgment of conviction
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1 and for review of the sentence. When the sentence is to

2 be implemented, the Attorney General shall release the

3 person sentenced to death to the custody of a United

4 States Marshal, who shall supervise implementation of the

5 sentence in the manner prescribed by the law of the State

6 in which the sentence is imposed. If the law of such State

7 does not provide for implementation of a sentence of

8 death, the court shall designate another State, the law of

9 which does so provide, and the sentence shall be imple10 mented in the manner prescribed by such law.

11 ‘‘(b) A sentence of death shall not be carried out upon

12 a person who lacks the mental capacity to understand the

13 death penalty and why it was imposed on that person, or

14 upon a woman while she is pregnant.

15 ‘‘(c) No employee of any State department of correc16 tions or the Federal Bureau of Prisons and no employee

17 providing services to that department or bureau under

18 contract shall be required, as a condition of that employ19 ment or contractual obligation, to be in attendance at or

20 to participate in any execution carried out under this sec21 tion if such participation is contrary to the moral or reli22 gious convictions of the employee. For purposes of this

23 subsection, the term ‘participate in any execution’ includes

24 personal preparation of the condemned individual and the
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1 apparatus used for the execution, and supervision of the

2 activities of other personnel in carrying out such activities.

3 ‘‘§ 3597. Use of State facilities

4 ‘‘A United States Marshal charged with supervising

5 the implementation of a sentence of death may use appro6 priate State or local facilities for the purpose, may use

7 the services of an appropriate State or local official or of

8 a person such as an official employed for the purpose, and

9 shall pay the costs thereof in an amount approved by the

10 Attorney General.

11 ‘‘§ 3598. Appointment of counsel

12 ‘‘(a) FEDERAL CAPITAL CASES.—

13 ‘‘(1) REPRESENTATION OF INDIGENT DEFEND14 ANTS.—Notwithstanding any other provision of law,

15 this subsection shall govern the appointment of

16 counsel for any defendant against whom a sentence

17 of death is sought, or on whom a sentence of death

18 has been imposed, for an offense against the United

19 States, where the defendant is or becomes financially

20 unable to obtain adequate representation. Such a de21 fendant shall be entitled to appointment of counsel

22 from the commencement of trial proceedings until

23 one of the conditions specified in section 3599(b) of

24 this title has occurred.
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1 ‘‘(2) REPRESENTATION BEFORE FINALITY OF

2 JUDGMENT.—A defendant within the scope of this

3 subsection shall have counsel appointed for trial rep4 resentation as provided in section 3005 of this title.

5 At least one counsel so appointed shall continue to

6 represent the defendant until the conclusion of direct

7 review of the judgment, unless replaced by the court

8 with other qualified counsel.

9 ‘‘(3) REPRESENTATION AFTER FINALITY OF

10 JUDGMENT.—When a judgment imposing a sentence

11 of death has become final through affirmance by the

12 Supreme Court on direct review, denial of certiorari

13 by the Supreme Court on direct review, or expiration

14 of the time for seeking direct review in the court of

15 appeals or the Supreme Court, the Government shall

16 promptly notify the district court that imposed the

17 sentence. Within ten days of receipt of such notice,

18 the district court shall proceed to make a determina19 tion whether the defendant is eligible under this sub20 section for appointment of counsel for subsequent

21 proceedings. On the basis of the determination, the

22 court shall issue an order: (A) appointing one or

23 more counsel to represent the defendant upon a

24 finding that the defendant is financially unable to

25 obtain adequate representation and wishes to have
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1 counsel appointed or is unable competently to decide

2 whether to accept or reject appointment of counsel;

3 (B) finding, after a hearing if necessary, that the

4 defendant rejected appointment of counsel and made

5 the decision with an understanding of its legal con6 sequences; or (C) denying the appointment of coun7 sel upon a finding that the defendant is financially

8 able to obtain adequate representation. Counsel ap9 pointed pursuant to this paragraph shall be different

10 from the counsel who represented the defendant at

11 trial and on direct review unless the defendant and

12 counsel request a continuation or renewal of the ear13 lier representation.

14 ‘‘(4) STANDARDS FOR COMPETENCE OF COUN15 SEL.—In relation to a defendant who is entitled to

16 appointment of counsel under this subsection, at

17 least one counsel appointed for trial representation

18 must have been admitted to the bar for at least five

19 years and have at least three years of experience in

20 the trial of felony cases in the Federal district

21 courts. If new counsel is appointed after judgment,

22 at least one counsel so appointed must have been ad23 mitted to the bar for at least five years and have at

24 least three years of experience in the litigation of fel25 ony cases in the Federal courts of appeals or the Su-
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1 preme Court. The court, for good cause, may ap2 point counsel who does not meet these standards,

3 but whose background, knowledge, or experience

4 would otherwise enable him or her to properly rep5 resent the defendant, with due consideration of the

6 seriousness of the penalty and the nature of the liti7 gation.

8 ‘‘(5) APPLICABILITY OF CRIMINAL JUSTICE

9 ACT.—Except as otherwise provided in this sub10 section, the provisions of section 3006A of this title

11 shall apply to appointments under this subsection.

12 ‘‘(6) CLAIMS OF INEFFECTIVENESS OF COUN13 SEL.—The ineffectiveness or incompetence of coun14 sel during proceedings on a motion under section

15 2255 of title 28, United States Code, in a capital

16 case shall not be a ground for relief from the judg17 ment or sentence in any proceeding. This limitation

18 shall not preclude the appointment of different coun19 sel at any stage of the proceedings.

20 ‘‘(b) STATE CAPITAL CASES.—The laws of the United

21 States shall not be construed to impose any requirement

22 with respect to the appointment of counsel in any proceed23 ing in a State court or other State proceeding in a capital

24 case, other than any requirement imposed by the Constitu25 tion of the United States. In a proceeding under section
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1 2254 of title 28, United States Code, relating to a State

2 capital case, or any subsequent proceeding on review, ap3 pointment of counsel for a petitioner who is or becomes

4 financially unable to afford counsel shall be in the discre5 tion of the court, except as provided by a rule promulgated

6 by the Supreme Court pursuant to statutory authority.

7 Such appointment of counsel shall be governed by the pro8 visions of section 3006A of this title.

9 ‘‘§ 3599. Collateral Attack on Judgment Imposing Sen10 tence of Death

11 ‘‘(a) TIME FOR MAKING SECTION 2255 MOTION.—In

12 any case in which a sentence of death has been imposed

13 for an offense against the United States and the judgment

14 has become final as described in section 3598(a)(3) of this

15 title, a motion in the case under section 2255 of title 28,

16 United States Code, must be filed within 90 days of the

17 issuance of the order relating to appointment of counsel

18 under section 3598(a)(3) of this title. The court in which

19 the motion is filed, for good cause shown, may extend the

20 time for filing for a period not exceeding sixty days. A

21 motion described in this section shall have priority over

22 all non-capital matters in the district court, and in the

23 court of appeals on review of the district court’s decision.

24 ‘‘(b) STAY OF EXECUTION.—The execution of a sen25 tence of death shall be stayed in the course of direct review
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1 of the judgment and during the litigation of an initial mo2 tion in the case under section 2255 of title 28, United

3 States Code. The stay shall run continuously following im4 position of the sentence, and shall expire if—

5 ‘‘(1) the defendant fails to file a motion under

6 section 2255 of title 28, United States Code, within

7 the time specified in subsection (a), or fails to make

8 a timely application for court of appeals review fol9 lowing the denial of such a motion by a district

10 court; or

11 ‘‘(2) upon completion of district court and court

12 of appeals review under section 2255 of title 28,

13 United States Code, the motion under that section

14 is denied and (A) the time for filing a petition for

15 certiorari has expired and no petition has been filed;

16 (B) a timely petition of certiorari was filed and the

17 Supreme Court denied the petition; or (C) a timely

18 petition for certiorari was filed and upon consider19 ation of the case, the Supreme Court disposed of it

20 in a manner that left the capital sentence undis21 turbed; or

22 ‘‘(3) before a district court, in the presence of

23 counsel and after having been advised of the con24 sequences of his decision, the defendant waives the
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1 right to file a motion under section 2255 of title 28,

2 United States Code.

3 ‘‘(c) FINALITY OF THE DECISION ON REVIEW.—If

4 one of the conditions specified in subsection (b) has oc5 curred, no court thereafter shall have the authority to

6 enter a stay of execution or grant relief in the case un7 less—

8 ‘‘(1) the basis for the stay and request for relief

9 is a claim not presented in earlier proceedings; and

10 ‘‘(2) the failure to raise the claim is (A) the re11 sult of governmental action in violation of the Con12 stitution or laws of the United States: (B) the result

13 of the Supreme Court recognition of a new Federal

14 right that is retroactively applicable; or (C) based on

15 a factual predicate that could not have been discov16 ered through the exercise of reasonable diligence in

17 time to present the claim in earlier proceedings; and

18 ‘‘(3) the facts underlying the claim would be

19 sufficient, if proven, to undermine the court’s con20 fidence in the determination of guilt on the offense

21 or offenses for which the death penalty was im22 posed.’’; and

23 (2) in the chapter analysis of part II, by adding

24 the following new item after the item relating to

25 chapter 227:

‘‘228. Death penalty ........................................................................... 3591’’.
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Æ

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