I

103D CONGRESS

1ST SESSION H. R. 3135

To amend title 18, United States Code, to provide a death penalty for

the murder of foreign visitors.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 27, 1993

Mr. GEKAS introduced the following bill; which was referred to the Committee

on the Judiciary

A BILL

To amend title 18, United States Code, to provide a death

penalty for the murder of foreign visitors.

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.

4 This Act may be cited as the ‘‘Foreign Tourist Pro5 tection Act of 1993’’.

6 SEC. 2. DEATH PENALTY PROCEDURES.

7 (a) IN GENERAL.—Chapter 51 of title 18, United

8 States Code, is amended by adding at the end the follow9 ing:
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1 ‘‘§ 1118. Protection of foreign tourists and visitors

2 ‘‘(a) IN GENERAL.—Whoever kills an individual

3 who—

4 ‘‘(1) is not a national of the United States;

5 ‘‘(2) is legally in the United States, as a tourist

6 or otherwise; and

7 ‘‘(3) does not have the right permanently to re8 side in the United States;

9 shall be punished as provided in sections 1111 and 1112

10 of this title, except that if the killing is a murder in the

11 first degree, the defendant shall also be subject to the

12 death penalty under this section. No person may be sen13 tenced to death under this section who was less than 18

14 years of age at the time of the offense or who is mentally

15 retarded.

16 ‘‘(b) FACTORS TO BE CONSIDERED IN DETERMINING

17 WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—

18 ‘‘(1) MITIGATING FACTORS.—In determining

19 whether a sentence of death is justified, the jury, or

20 if there is no jury, the court, shall consider each of

21 the following mitigating factors and determine

22 which, if any, exist:

23 ‘‘(A) MENTAL CAPACITY.—The defendant’s

24 mental capacity to appreciate the wrongfulness

25 of his conduct or to conform his conduct to the

26 requirements of law was significantly impaired,
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1 regardless of whether the capacity was so im2 paired as to constitute a defense to the charge.

3 ‘‘(B) DURESS.—The defendant was under

4 unusual and substantial duress, regardless of

5 whether the duress was of such a degree as to

6 constitute a defense to the charge.

7 ‘‘(C) PARTICIPATION IN OFFENSE

8 MINOR.—The defendant’s participation in the

9 offense, which was committed by another, was

10 relatively minor, regardless of whether the par11 ticipation was so minor as to constitute a de12 fense to the charge.

13 ‘‘(D) NO SIGNIFICANT CRIMINAL HIS14 TORY.—The defendant did not have a signifi15 cant history of other criminal conduct.

16 ‘‘(E) DISTURBANCE.—The defendant com17 mitted the offense under severe mental or emo18 tional disturbance.

19 ‘‘(F) VICTIM’S CONSENT.—The victim con20 sented to the criminal conduct that resulted in

21 the victim’s death.

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

23 whether any other aspect of the defendant’s background,

24 character or record or any other circumstance of the of-
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1 fense that the defendant may proffer as a mitigating fac2 tor exists.

3 ‘‘(2) AGGRAVATING FACTORS.—In determining

4 whether a sentence of death is justified, the jury, or

5 if there is no jury, the court, shall consider each of

6 the following aggravating factors and determine

7 which, if any, exist:

8 ‘‘(A) CONDUCT OCCURRED DURING COM9 MISSION OF SPECIFIED CRIMES.—The conduct

10 resulting in death occurred during the commis11 sion or attempted commission of, or during the

12 immediate flight from the commission of, an of13 fense under section 32 (destruction of aircraft

14 or aircraft facilities), section 33 (destruction of

15 motor vehicles or motor vehicle facilities), sec16 tion 36 (violence at international airports), sec17 tion 751 (prisoners in custody of institution or

18 officer), section 844(d) (transportation of explo19 sives in interstate commerce for certain pur20 poses), section 844(f) (destruction of Govern21 ment property by explosives), section 844(i)

22 (destruction of property affecting interstate

23 commerce by explosives), section 1116 (killing

24 or attempted killing of diplomats), section 1201

25 (kidnapping), section 1203 (hostage taking),
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1 section 1992 (wrecking trains), section 2332

2 (terrorism), or section 902 (i) or (n) of the

3 Federal Aviation Act of 1958, as amended (49

4 U.S.C. App. 1472 (i) or (n) (aircraft piracy)).

5 ‘‘(B) INVOLVEMENT OF FIREARM OR PRE6 VIOUS CONVICTION OF VIOLENT FELONY IN7 VOLVING FIREARM.—The defendant—

8 ‘‘(i) during and in relation to the com9 mission of the offense or in escaping or at10 tempting to escape apprehension used or

11 possessed a firearm as defined in section

12 921 of this title; or

13 ‘‘(ii) has previously been convicted of

14 a Federal or State offense punishable by a

15 term of imprisonment of more than one

16 year, involving the use of attempted or

17 threatened use of a firearm, as defined in

18 section 921 of this title, against another

19 person.

20 ‘‘(C) PREVIOUS CONVICTION OF OFFENSE

21 FOR WHICH A SENTENCE OF DEATH OR LIFE

22 IMPRISONMENT WAS AUTHORIZED.—The de23 fendant has previously been convicted of an24 other Federal or State offense resulting in the

25 death of a person, for which a sentence of life
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1 imprisonment or death was authorized by stat2 ute.

3 ‘‘(D) PREVIOUS CONVICTION OF OTHER

4 SERIOUS OFFENSES.—The defendant has pre5 viously been convicted of two or more Federal

6 or State offenses, each punishable by a term of

7 imprisonment of more than one year, committed

8 on different occasions, involving the importa9 tion, manufacture, or distribution of a con10 trolled substance (as defined in section 102 of

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

12 or the infliction of, or attempted infliction of,

13 serious bodily injury or death upon another

14 person.

15 ‘‘(E) GRAVE RISK OF DEATH TO ADDI16 TIONAL PERSONS.—The defendant, in the com17 mission of the offense or in escaping or at18 tempting to escape apprehension, knowingly

19 created a grave risk of death to one or more

20 persons in addition to the victim of the offense.

21 ‘‘(F) HEINOUS, CRUEL, OR DEPRAVED

22 MANNER OF COMMISSION.—The defendant com23 mitted the offense in an especially heinous,

24 cruel, or depraved manner in that it involved

25 torture or serious physical abuse to the victim.
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1 ‘‘(G) PROCUREMENT OF OFFENSE BY PAY2 MENT.—The defendant procured the commis3 sion of the offense by payment, or promise of

4 payment, of anything of pecuniary value.

5 ‘‘(H) COMMISSION OF THE OFFENSE FOR

6 PECUNIARY GAIN.—The defendant committed

7 the offense as consideration for the receipt, or

8 in the expectation of the receipt, of anything of

9 pecuniary value.

10 ‘‘(I) SUBSTANTIAL PLANNING AND

11 PREMEDITATION.—The defendant committed

12 the offense after substantial planning and

13 premeditation.

14 ‘‘(J) VULNERABILITY OF VICTIM.—The

15 victim was particularly vulnerable due to old

16 age, youth, infirmity, or inability to commu17 nicate in or understand English.

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

19 whether any other aggravating factor exists.

20 ‘‘(c) SPECIAL HEARING TO DETERMINE WHETHER

21 A SENTENCE OF DEATH IS JUSTIFIED.—

22 ‘‘(1) NOTICE BY THE GOVERNMENT.—When23 ever the Government intends to seek the death pen24 alty for an offense under this section, the attorney

25 for the Government, a reasonable time before the
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1 trial, or before acceptance by the court of a plea of

2 guilty, or at such time thereafter as the court may

3 permit upon a showing of good cause, shall sign and

4 file with the court, and serve on the defendant, a no5 tice that the Government in the event of conviction

6 will seek the sentence of death. The notice shall set

7 forth the aggravating factor or factors enumerated

8 in this section, and any other aggravating factor not

9 specifically enumerated in this section, that the Gov10 ernment, if the defendant is convicted, will seek to

11 prove as the basis for the death penalty. The factors

12 for which notice is provided under this subsection

13 may include factors concerning the effect of the of14 fense on the victim and the victim’s family. The

15 court may permit the attorney for the Government

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

17 ‘‘(2) HEARING BEFORE A COURT OR JURY.—

18 When the attorney for the Government has filed a

19 notice under paragraph (1) and the defendant is

20 found guilty of an offense under this section, the

21 judge who presided at the trial or before whom the

22 guilty plea was entered, or another judge if that

23 judge is unavailable, shall conduct a separate sen24 tencing hearing to determine the punishment to be

25 imposed. Before such a hearing, no presentence re-
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1 port shall be prepared by the United States Proba2 tion Service, notwithstanding the provisions of the

3 Federal Rules of Criminal Procedure. The hearing

4 shall be conducted—

5 ‘‘(A) before the jury that determined the

6 defendant’s guilt;

7 ‘‘(B) before a jury impaneled for the pur8 pose of the hearing if—

9 ‘‘(i) the defendant was convicted upon

10 a plea of guilty;

11 ‘‘(ii) the defendant was convicted after

12 a trial before the court sitting without a

13 jury;

14 ‘‘(iii) the jury that determined the de15 fendant’s guilt was discharged for good

16 cause; or

17 ‘‘(iv) after initial imposition of a sen18 tence under this section, reconsideration of

19 the sentence under the section is nec20 essary; or

21 ‘‘(C) before the court alone, upon motion

22 of the defendant and with the approval of the

23 attorney for the Government.

24 A jury impaneled pursuant to subparagraph (B)

25 shall consist of 12 members, unless, at any time be-
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1 fore the conclusion of the hearing, the parties stipu2 late, with the approval of the court, that it shall con3 sist of a lesser number.

4 ‘‘(3) PROOF OF MITIGATING AND AGGRAVATING

5 FACTORS.—At the hearing, information may be pre6 sented as to—

7 ‘‘(A) any matter relating to any mitigating

8 factor listed in this section and any other miti9 gating factor; and

10 ‘‘(B) any matter relating to any aggravat11 ing factor listed in this section for which notice

12 has been provided under paragraph (1) and (if

13 information is presented relating to such a list14 ed factor) any other aggravating factor for

15 which notice has been so provided.

16 The information presented may include the trial

17 transcript and exhibits. Any other information rel18 evant to such mitigating or aggravating factors may

19 be presented by either the Government or the de20 fendant. The information presented by the Govern21 ment in support of factors concerning the effect of

22 the offense on the victim and the victim’s family

23 may include oral testimony, a victim impact state24 ment that identifies the victim of the offense and the

25 nature and extent of harm and loss suffered by the
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1 victim and the victim’s family, and other relevant in2 formation. Information is admissible regardless of its

3 admissibility under the rules governing admission of

4 evidence at criminal trials, except that information

5 may be excluded if its probative value is outweighed

6 by the danger of creating unfair prejudice, confusing

7 the issues, or misleading the jury. The attorney for

8 the Government and for the defendant shall be per9 mitted to rebut any information received at the

10 hearing, and shall be given fair opportunity to

11 present argument as to the adequacy of the informa12 tion to establish the existence of any aggravating or

13 mitigating factor, and as to the appropriateness in

14 that case of imposing a sentence of death. The attor15 ney for the Government shall open the argument.

16 The defendant shall be permitted to reply. The Gov17 ernment shall then be permitted to reply in rebuttal.

18 The burden of establishing the existence of an ag19 gravating factor is on the Government, and is not

20 satisfied unless the existence of such a factor is es21 tablished beyond a reasonable doubt. The burden of

22 establishing the existence of any mitigating factor is

23 on the defendant, and is not satisfied unless the ex24 istence of such a factor is established by a prepon25 derance of the evidence.
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1 ‘‘(4) RETURN OF SPECIAL FINDINGS.—The

2 jury, or if there is no jury, the court, shall consider

3 all the information received during the hearing. It

4 shall return special findings identifying any aggra5 vating factor or factors set forth in this section

6 found to exist and any other aggravating factor, for

7 which notice has been provided under this section,

8 found to exist. A finding with respect to a mitigating

9 factor may be made by one or more members of the

10 jury, and any member of the jury who finds the ex11 istence of a mitigating factor may consider such fac12 tor established for purposes of this section regard13 less of the number of jurors who concur that the

14 factor has been established. A finding with respect

15 to any aggravating factor must be unanimous. If no

16 aggravating factor set forth in this section is found

17 to exist, the court shall impose a sentence other than

18 death authorized by law.

19 ‘‘(5) RETURN OF A FINDING CONCERNING A

20 SENTENCE OF DEATH.—If an aggravating factor re21 quired to be considered under this section is found

22 to exist, the jury, or if there is no jury, the court,

23 shall then consider whether the aggravating factor

24 or factors found to exist outweigh any mitigating

25 factor or factors. The jury, or if there is no jury, the
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1 court shall recommend a sentence of death if it

2 unanimously finds at least one aggravating factor

3 and no mitigating factor or if it finds one or more

4 aggravating factors which outweigh any mitigating

5 factors. In any other case, it shall not recommend a

6 sentence of death. The jury shall be instructed that

7 it must avoid any influence of sympathy, sentiment,

8 passion, prejudice, or other arbitrary factors in its

9 decision, and should make such a recommendation

10 as the information warrants.

11 ‘‘(6) SPECIAL PRECAUTION TO ASSURE AGAINST

12 DISCRIMINATION.—In a hearing held before a jury,

13 the court, before the return of a finding under para14 graph (5), shall instruct the jury that, in considering

15 whether a sentence of death is justified, it shall not

16 be influenced by prejudice or bias relating to the

17 race, color, religion, national origin, or sex of the de18 fendant or of any victim and that the jury is not to

19 recommend a sentence of death unless it has con20 cluded that it would recommend a sentence of death

21 for the crime in question no matter what the race,

22 color, religion, national origin, or sex of the defend23 ant or of any victim may be. The jury, upon return

24 of a finding under paragraph (5), shall also return

25 to the court a certificate, signed by each juror, that
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1 prejudice or bias relating to the race, color, religion,

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

3 was not involved in reaching his or her individual de4 cision and that the individual juror would have made

5 the same recommendation regarding a sentence for

6 the crime in question no matter what the race, color,

7 religion, national origin, or sex of the defendant or

8 any victim may be.

9 ‘‘(d) IMPOSITION OF A SENTENCE OF DEATH.—Upon

10 the recommendation under section 3593(e) that a sentence

11 of death be imposed, the court shall sentence the defend12 ant to death. Otherwise the court shall impose a sentence,

13 other than death, authorized by law. Notwithstanding any

14 other provision of law, if the maximum term of imprison15 ment for the offense is life imprisonment, the court may

16 impose a sentence of life imprisonment without the possi17 bility of release.

18 ‘‘(e) REVIEW OF A SENTENCE OF DEATH.—

19 ‘‘(1) APPEAL.—In a case in which a sentence of

20 death is imposed, the sentence shall be subject to re21 view by the court of appeals upon appeal by the de22 fendant. Notice of appeal of the sentence must be

23 filed within the time specified for the filing of a no24 tice of appeal of the judgment of conviction. An ap25 peal of the sentence under this section may be con-
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1 solidated with an appeal of the judgment of convic2 tion and shall have priority over all other cases.

3 ‘‘(2) REVIEW.—The court of appeals shall re4 view the entire record in the case, including—

5 ‘‘(A) the evidence submitted during the

6 trial;

7 ‘‘(B) the information submitted during the

8 sentencing hearing;

9 ‘‘(C) the procedures employed in the sen10 tencing hearing; and

11 ‘‘(D) the special findings returned under

12 this section.

13 ‘‘(3) DECISION AND DISPOSITION.—

14 ‘‘(A) If the court of appeals determines

15 that—

16 ‘‘(i) the sentence of death was not im17 posed under the influence of passion, prej18 udice, or any other arbitrary factor;

19 ‘‘(ii) the evidence and information

20 support the special findings of the exist21 ence of an aggravating factor or factors;

22 and

23 ‘‘(iii) the proceedings did not involve

24 any other prejudicial error requiring rever-
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1 sal of the sentence that was properly pre2 served for and raised on appeal;

3 it shall affirm the sentence.

4 ‘‘(B) In any other case, the court of ap5 peals shall remand the case for reconsideration

6 under this section or for imposition of another

7 authorized sentence as appropriate, except that

8 the court shall not reverse a sentence of death

9 on the ground that an aggravating factor was

10 invalid or was not supported by the evidence

11 and information if at least one aggravating fac12 tor required to be considered under this section

13 remains which was found to exist and the court,

14 on the basis of the evidence submitted at trial

15 and the information submitted at the sentenc16 ing hearing, finds no mitigating factor or finds

17 that the remaining aggravating factor or factors

18 which were found to exist outweigh any mitigat19 ing factors.

20 ‘‘(C) The court of appeals shall state in

21 writing the reasons for its disposition of an ap22 peal of a sentence of death under this section.

23 ‘‘(f) IMPLEMENTATION OF A SENTENCE OF

24 DEATH.—
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1 ‘‘(1) IN GENERAL.—A person who has been

2 sentenced to death under this section shall be com3 mitted to the custody of the Attorney General until

4 exhaustion of the procedures for appeal of the judg5 ment of conviction and for review of the sentence.

6 When the sentence is to be implemented, the Attor7 ney General shall release the person sentenced to

8 death to the custody of a United States Marshal,

9 who shall supervise implementation of the sentence

10 in the manner prescribed by the law of the State in

11 which the sentence is imposed. If the law of such

12 State does not provide for implementation of a sen13 tence of death, the court shall designate another

14 State, the law of which does so provide, and the sen15 tence shall be implemented in the manner prescribed

16 by such law.

17 ‘‘(2) SPECIAL BARS TO EXECUTION.—A sen18 tence of death shall not be carried out upon a person

19 who lacks the mental capacity to understand the

20 death penalty and why it was imposed on that per21 son, or upon a woman while she is pregnant.

22 ‘‘(3) EMPLOYEES MAY DECLINE TO PARTICI23 PATE.—No employee of any State department of

24 corrections, the Federal Bureau of Prisons, or the

25 United States Marshals Service, and no employee
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1 providing services to that department, bureau, or

2 service under contract shall be required, as a condi3 tion of that employment or contractual obligation, to

4 be in attendance at or to participate in any execu5 tion carried out under this section if such participa6 tion is contrary to the moral or religious convictions

7 of the employee. For purposes of this subsection, the

8 term ‘participate in any execution’ includes personal

9 preparation of the condemned individual and the ap10 paratus used for the execution, and supervision of

11 the activities of other personnel in carrying out such

12 activities.

13 ‘‘(g) USE OF STATE FACILITIES.—A United States

14 Marshal charged with supervising the implementation of

15 a sentence of death may use appropriate State or local

16 facilities for the purpose, may use the services of an appro17 priate State or local official or of a person such an official

18 employs for the purpose, and shall pay the costs thereof

19 in an amount approved by the Attorney General.

20 ‘‘(h) APPOINTMENT OF COUNSEL.—

21 ‘‘(1) REPRESENTATION OF INDIGENT DEFEND22 ANTS.—Notwithstanding any other provision of law,

23 this section shall govern the appointment of counsel

24 for any defendant against whom a sentence of death

25 is sought, or on whom a sentence of death has been
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1 imposed, for an offense against the United States,

2 where the defendant is or becomes financially unable

3 to obtain adequate representation. Such a defendant

4 shall be entitled to appointment of counsel from the

5 commencement of trial proceedings until one of the

6 conditions specified in subsection (h)(2) has oc7 curred.

8 ‘‘(2) REPRESENTATION BEFORE FINALITY OF

9 JUDGMENT.—A defendant within the scope of this

10 section shall have counsel appointed for trial rep11 resentation as provided in section 3005 of this title.

12 At least one counsel so appointed shall continue to

13 represent the defendant until the conclusion of direct

14 review of the judgment, unless replaced by the court

15 with other qualified counsel.

16 ‘‘(3) REPRESENTATION AFTER FINALITY OF

17 JUDGMENT.—When a judgment imposing a sentence

18 of death has become final through affirmance by the

19 Supreme Court on direct review, denial of certiorari

20 by the Supreme Court on direct review, or expiration

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

22 appeals or the Supreme Court, the Government shall

23 promptly notify the district court that imposed the

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

25 the district court shall proceed to make a determina-
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1 tion whether the defendant is eligible under this sec2 tion for appointment of counsel for subsequent pro3 ceedings. On the basis of the determination, the

4 court shall issue an order—

5 ‘‘(A) appointing one or more counsel to

6 represent the defendant upon a finding that the

7 defendant is financially unable to obtain ade8 quate representation and wishes to have counsel

9 appointed or is unable competently to decide

10 whether to accept or reject appointment of

11 counsel;

12 ‘‘(B) finding, after a hearing if necessary,

13 that the defendant rejected appointment of

14 counsel and made the decision with an under15 standing of its legal consequences; or

16 ‘‘(C) denying the appointment of counsel

17 upon a finding that the defendant is financially

18 able to obtain adequate representation.

19 Counsel appointed pursuant to this subsection shall

20 be different from the counsel who represented the

21 defendant at trial and on direct review unless the

22 defendant and counsel request a continuation or re23 newal of the earlier representation.

24 ‘‘(4) STANDARDS FOR COMPETENCE OF COUN25 SEL.—In relation to a defendant who is entitled to
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1 appointment of counsel under this section, at least

2 one counsel appointed for trial representation must

3 have been admitted to the bar for at least five years

4 and have at least three years of experience in the

5 trial of felony cases in the Federal district courts. If

6 new counsel is appointed after judgment, at least

7 one counsel so appointed must have been admitted

8 to the bar for at least five years and have at least

9 three years of experience in the litigation of felony

10 cases in the Federal courts of appeals or the Su11 preme Court. The court, for good cause, may ap12 point counsel who does not meet these standards,

13 but whose background, knowledge, or experience

14 would otherwise enable him or her to properly rep15 resent the defendant, with due consideration of the

16 seriousness of the penalty and the nature of the liti17 gation.

18 ‘‘(5) APPLICABILITY OF CRIMINAL JUSTICE

19 ACT.—Except as otherwise provided in this section,

20 the provisions of section 3006A of this title shall

21 apply to appointments under this section.

22 ‘‘(6) CLAIMS OF INEFFECTIVENESS OF COUN23 SEL.—The ineffectiveness or incompetence of coun24 sel during proceedings on a motion under section

25 2255 of title 28 in a capital case shall not be a
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1 ground for relief from the judgment or sentence in

2 any proceeding. This limitation shall not preclude

3 the appointment of different counsel at any stage of

4 the proceedings.

5 ‘‘(i) COLLATERAL ATTACK ON JUDGMENT IMPOSING

6 SENTENCE OF DEATH.—

7 ‘‘(1) TIME FOR MAKING SECTION 2255 MO8 TION.—In a case in which sentence of death has

9 been imposed, and the judgment has become final as

10 described in subsection (g)(3), a motion in the case

11 under section 2255 of title 28, United States Code,

12 must be filed within 90 days of the issuance of the

13 order relating to appointment of counsel under sub14 section (g)(3) of this title. The court in which the

15 motion is filed, for good cause shown, may extend

16 the time for filing for a period not exceeding 60

17 days. A motion described in this section shall have

18 priority over all noncapital matters in the district

19 court, and in the court of appeals on review of the

20 district court’s decision.

21 ‘‘(2) STAY OF EXECUTION.—The execution of a

22 sentence of death shall be stayed in the course of di23 rect review of the judgment and during the litigation

24 of an initial motion in the case under section 2255
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1 of title 28. The stay shall run continuously following

2 imposition of the sentence, and shall expire if—

3 ‘‘(A) the defendant fails to file a motion

4 under section 2255 of title 28, within the time

5 specified in subsection (a), or fails to make a

6 timely application for court of appeals review

7 following the denial of such motion by a district

8 court;

9 ‘‘(B) upon completion of district court and

10 court of appeals review under section 2255 of

11 title 28, the motion under that section is denied

12 and (i) the time for filing a petition for certio13 rari has expired and no petition has been filed;

14 (ii) a timely petition for certiorari was filed and

15 the Supreme Court denied the petition; or (iii)

16 a timely petition for certiorari was filed and

17 upon consideration of the case, the Supreme

18 Court disposed of it in a manner that left the

19 capital sentence undisturbed; or

20 ‘‘(C) before a district court, in the pres21 ence of counsel and after having been advised

22 of the consequences of his decision, the defend23 ant waives the right to file a motion under sec24 tion 2255 of title 28.
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1 ‘‘(3) FINALITY OF THE DECISION ON RE2 VIEW.—If one of the conditions specified in sub3 section (b) has occurred, no court thereafter shall

4 have the authority to enter a stay of execution or

5 grant relief in the case unless—

6 ‘‘(A) the basis for the stay and request for

7 relief is a claim not presented in earlier pro8 ceedings;

9 ‘‘(B) the failure to raise the claim was (i)

10 the result of governmental action in violation of

11 the Constitution or laws of the United States;

12 (ii) the result of the Supreme Court recognition

13 of a new Federal right that is retroactively ap14 plicable; or (iii) based on a factual predicate

15 that could not have been discovered through the

16 exercise of reasonable diligence in time to

17 present the claim in earlier proceedings; and

18 ‘‘(C) the facts underlying the claim would

19 be sufficient, if proven, to undermine the

20 court’s confidence in the determination of guilt

21 on the offense or offenses for which the death

22 penalty was imposed.’’.

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

24 at the beginning of chapter 51 of title 18, United States

25 Code, is amended by adding at the end the following:

‘‘1118. Protection of foreign tourists and visitors.’’.
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