I

103D CONGRESS

1ST SESSION H. R. 3558

To provide Federal penalties for drive-by shootings.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 19, 1993

Mr. FRANKS of Connecticut introduced the following bill; which was referred

to the Committee on the Judiciary

A BILL

To provide Federal penalties for drive-by shootings.

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

3 SECTION 1. DRIVE-BY SHOOTING IN CONNECTION WITH

4 MAJOR DRUG OFFENSE.

5 (a) OFFENSE.—

6 (1) IN GENERAL.—Chapter 2 of title 18,

7 United States Code, is amended by adding at the

8 end the following new section:

9 ‘‘§ 36. Drive-by shooting

10 ‘‘(a) DEFINITION.—In this section, ‘major drug

11 offense’ means—
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1 ‘‘(1) a continuing criminal enterprise punish2 able under section 403(c) of the Controlled Sub3 stances Act (21 U.S.C. 848(c));

4 ‘‘(2) a conspiracy to distribute controlled sub5 stances punishable under section 406 of the Con6 trolled Substances Act (21 U.S.C. 846) or section

7 1013 of the Controlled Substances Import and Ex8 port Control Act (21 U.S.C. 963); and

9 ‘‘(3) an offense involving large quantities of

10 drugs and punishable under section 401(b)(1)(A) of

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

12 841(b)(1)(A)) or section 1010(b)(1) of the Con13 trolled Substances Import and Export Act (21

14 U.S.C. 960(b)(1)).

15 ‘‘(b) OFFENSES AND PENALTIES.—

16 ‘‘(1) A person who, in furtherance of or to

17 avoid detection of a major drug offense, with the in18 tent to intimidate, harass, injure, or maim another

19 person, fires a weapon into a group of 2 or more

20 persons shall be imprisoned not more than 25 years,

21 fined under this title, or both.

22 ‘‘(2) A person who, in furtherance of or to

23 avoid detection of a major drug offense, with the in24 tent to intimidate, harass, injure, or maim another

25 person, fires a weapon into a group of 2 or more
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1 persons and thereby causes the death of any person

2 shall—

3 ‘‘(A) if the killing is a first degree murder

4 (as defined in section 1111(a)), be punished by

5 death or imprisonment for any term of years or

6 for life, fined under this title, or both: or

7 ‘‘(B) if the killing is a murder other than

8 a first degree murder (as defined in section

9 1111(a)), be fined under this title, imprisoned

10 for any term of years or for life, or both.’’.

11 (2) CLERICAL AMENDMENT.—The table of sec12 tions at the beginning of chapter 2 of title 18, Unit13 ed States Code, is amended by adding at the end the

14 following new item:

‘‘36. Drive-by shooting.’’.

15 (b) DEATH PENALTY PROCEDURES.—

16 (1) ADDITION OF CHAPTER TO TITLE 18,

17 UNITED STATES CODE.—Title 18, United States

18 Code, is amended by inserting after chapter 227 the

19 following new chapter:

20 ‘‘CHAPTER 228—DEATH PENALTY

21 PROCEDURES

‘‘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.
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‘‘3596. Implementation of a sentence of death.

‘‘3597. Use of State facilities.

‘‘3598. Appointment of counsel.

‘‘3599. Collateral attack on judgment imposing sentence of death.

1 ‘‘§ 3591. Sentence of death

2 ‘‘A defendant who has been found guilty of an offense

3 under section 36, if the defendant, as determined beyond

4 a reasonable doubt at a hearing under section 3593,

5 caused the death of a person intentionally, knowingly, or

6 through recklessness manifesting extreme indifference to

7 human life, or caused the death of a person through the

8 intentional infliction of serious bodily injury, shall be sen9 tenced to death if, after consideration of the factors set

10 forth in section 3592 in the course of a hearing held pur11 suant to section 3593, it is determined that imposition of

12 a sentence of death is justified, except that no person may

13 be sentenced to death who was less than 18 years of age

14 at the time of the offense.

15 ‘‘§ 3592. Factors to be considered in determining

16 whether a sentence of death is justified

17 ‘‘(a) MITIGATING FACTORS.—In determining wheth18 er a sentence of death is justified for any offense, the jury,

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

20 the following mitigating factors and determine which, if

21 any, exist:

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

23 mental capacity to appreciate the wrongfulness of
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1 the defendant’s conduct or to conform the defend2 ant’s conduct to the requirements of law was signifi3 cantly impaired, regardless of whether the capacity

4 was so impaired as to constitute a defense to the

5 charge.

6 ‘‘(2) DURESS.—The defendant was under un7 usual and substantial duress, regardless of whether

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

9 defense to the charge.

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

11 defendant is punishable as a principal in the offense,

12 which was committed by another, but the defend13 ant’s participation was relatively minor, regardless

14 of whether the participation was so minor as to con15 stitute a defense to the charge.

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

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

18 record or any other circumstances of the offense that the

19 defendant may proffer as a mitigating factor exists.

20 ‘‘(b) AGGRAVATING FACTORS FOR ESPIONAGE AND

21 TREASON.—In determining whether a sentence of death

22 is justified for an offense described in section 3591(1), the

23 jury, or if there is no jury, the court, shall consider each

24 of the following aggravating factors and determine which,

25 if any, exist:
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1 ‘‘(1) PREVIOUS ESPIONAGE OR TREASON CON2 VICTION.—The defendant has previously been con3 victed of another offense involving espionage or trea4 son for which a sentence of life imprisonment or

5 death was authorized by statute.

6 ‘‘(2) RISK OF SUBSTANTIAL DANGER TO NA7 TIONAL SECURITY.—In the commission of the of8 fense the defendant knowingly created a grave risk

9 to the national security.

10 ‘‘(3) RISK OF DEATH TO ANOTHER.—In the

11 commission of the offense the defendant knowingly

12 created a grave risk of death to another person.

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

14 whether any other aggravating factor exists.

15 ‘‘(c) AGGRAVATING FACTORS FOR HOMICIDE AND

16 FOR ATTEMPTED MURDER OF THE PRESIDENT.—In de17 termining whether a sentence of death is justified for an

18 offense described in section 3591 (2) or (6), the jury, or

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

20 following aggravating factors and determine which, if any,

21 exist:

22 ‘‘(1) DEATH OCCURRED DURING COMMISSION

23 OF ANOTHER CRIME.—The death occurred during

24 the commission or attempted commission of, or dur25 ing the immediate flight from the commission of, an
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1 offense under section 751 (prisoners in custody of

2 institution or officer), section 794 (gathering or de3 livering defense information to aid foreign govern4 ment), section 844(d) (transportation of explosives

5 in interstate commerce for certain purposes), section

6 844(f) (destruction of Government property by ex7 plosives), section 1118 (prisoners serving life term),

8 section 1201 (kidnapping), or section 2381 (treason)

9 of this title, section 1826 of title 28 (persons in cus10 tody as recalcitrant witnesses or hospitalized follow11 ing a finding of not guilty only by reason of insan12 ity), or section 902 (i) or (n) of the Federal Aviation

13 Act of 1958 (49 U.S.C. 1472 (i) and (n) (aircraft

14 piracy)).

15 ‘‘(2) INVOLVEMENT OF FIREARM OR PREVIOUS

16 CONVICTION OF VIOLENT FELONY INVOLVING FIRE17 ARM.—The defendant—

18 ‘‘(A) during and in relation to the commis19 sion of the offense or in escaping apprehension

20 used or possessed a firearm (as defined in sec21 tion 921); or

22 ‘‘(B) has previously been convicted of a

23 Federal or State offense punishable by a term

24 of imprisonment of more than 1 year, involving

25 the use or attempted or threatened use of a
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1 firearm (as defined in section 921) against an2 other person.

3 ‘‘(3) PREVIOUS CONVICTION OF OFFENSE FOR

4 WHICH A SENTENCE OF DEATH OR LIFE IMPRISON5 MENT WAS AUTHORIZED.—The defendant has pre6 viously been convicted of another Federal or State

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

8 a sentence of life imprisonment or death was author9 ized by statute.

10 ‘‘(4) PREVIOUS CONVICTION OF OTHER SERI11 OUS OFFENSES.—The defendant has previously been

12 convicted of 2 or more Federal or State offenses,

13 each punishable by a term of imprisonment of more

14 than 1 year, committed on different occasions, in15 volving the importation, manufacture, or distribution

16 of a controlled substance (as defined in section 102

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

18 or the infliction of, or attempted infliction of, serious

19 bodily injury or death upon another person.

20 ‘‘(5) GRAVE RISK OF DEATH TO ADDITIONAL

21 PERSONS.—The defendant, in the commission of the

22 offense or in escaping apprehension, knowingly cre23 ated a grave risk of death to 1 or more persons in

24 addition to the victim of the offense.
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1 ‘‘(6) HEINOUS, CRUEL, OR DEPRAVED MANNER

2 OF COMMISSION.—The defendant committed the of3 fense in an especially heinous, cruel, or depraved

4 manner in that it involved torture or serious physical

5 abuse to the victim.

6 ‘‘(7) PROCUREMENT OF OFFENSE BY PAY7 MENT.—The defendant procured the commission of

8 the offense by payment, or promise of payment, of

9 anything of pecuniary value.

10 ‘‘(8) COMMISSION OF THE OFFENSE FOR PECU11 NIARY GAIN.—The defendant committed the offense

12 as consideration for the receipt, or in the expectation

13 of the receipt, of anything of pecuniary value.

14 ‘‘(9) SUBSTANTIAL PLANNING AND

15 PREMEDITATION.—The defendant committed the of16 fense after substantial planning and premeditation.

17 ‘‘(10) VULNERABILITY OF VICTIM.—The victim

18 was particularly vulnerable due to old age, youth, or

19 infirmity.

20 ‘‘(11) TYPE OF VICTIM.—(A) The defendant

21 committed the offense against—

22 ‘‘(i) the President of the United States, the

23 President-elect, the Vice President, the Vice

24 President-elect, the Vice President-designate,

25 or, if there is no Vice President, the officer next
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1 in order of succession to the office of the Presi2 dent of the United States, or any person who

3 is acting as President under the Constitution

4 and laws of the United States;

5 ‘‘(ii) a chief of state, head of government,

6 or the political equivalent, of a foreign nation;

7 ‘‘(iii) a foreign official described in section

8 1116(b)(3)(A), if the official is in the United

9 States on official business; or

10 ‘‘(iv) a public servant who is a Federal

11 judge, a Federal law enforcement officer, an

12 employee (including a volunteer or contract em13 ployee) of a Federal prison, or an official of the

14 Federal Bureau of Prisons—

15 ‘‘(I) while the public servant is en16 gaged in the performance of the public

17 servant’s official duties;

18 ‘‘(II) because of the performance of

19 the public servant’s official duties; or

20 ‘‘(III) because of the public servant’s

21 status as a public servant.

22 ‘‘(B) For purposes of this paragraph—

23 ‘‘(i) the terms ‘President-elect’ and ‘Vice

24 President-elect’ mean persons that are the ap25 parent successful candidates for the offices of
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1 President and Vice President, respectively, as

2 ascertained from the results of the general elec3 tions held to determine the electors of President

4 and Vice President in accordance with sections

5 1 and 2 of title 3, United States Code;

6 ‘‘(ii) the term ‘Federal law enforcement of7 ficer’ means a public servant authorized by law

8 or by a government agency or Congress to con9 duct or engage in the prevention, investigation,

10 or prosecution of an offense;

11 ‘‘(iii) the term ‘Federal prison’ means a

12 Federal correctional, detention, or penal facility,

13 Federal community treatment center, or Fed14 eral halfway house, or any such prison operated

15 under contract with the Federal Government;

16 and

17 ‘‘(iv) the term ‘Federal judge’ means a ju18 dicial officer of the United States (including a

19 justice of the Supreme Court and a magistrate).

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

21 whether any other aggravating factor exists.

22 ‘‘§ 3593. Special hearing to determine whether a sen23 tence of death is justified

24 ‘‘(a) NOTICE BY THE GOVERNMENT.—When the Gov25 ernment intends to seek the death penalty for an offense
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1 described in section 3591, the attorney for the Govern2 ment, a reasonable time before the trial, or before accept3 ance by the court of a plea of guilty, or at such time there4 after as the court may permit upon a showing of good

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

6 defendant, a notice—

7 ‘‘(1) that the Government in the event of con8 viction will seek the sentence of death; and

9 ‘‘(2) setting forth the aggravating factor or fac10 tors enumerated in section 3592 and any other ag11 gravating factor not specifically enumerated in sec12 tion 3592, that the Government, if the defendant is

13 convicted, will seek to prove as the basis for the

14 death penalty.

15 The court may permit the attorney for the Government

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

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

18 the attorney for the Government has filed a notice as re19 quired under subsection (a) of this section and the defend20 ant is found guilty of an offense described in section 3591,

21 the judge who presided at the trial or before whom the

22 guilty plea was entered, or another judge if that judge is

23 unavailable, shall conduct a separate sentencing hearing

24 to determine the punishment to be imposed. Before such

25 a hearing, no presentence report shall be prepared by the
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1 United States Probation Service, notwithstanding the

2 Federal Rules of Criminal Procedure. The hearing shall

3 be conducted—

4 ‘‘(1) before the jury that determined the de5 fendant’s guilt;

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

7 the hearing if—

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

9 plea of guilty;

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

11 trial before the court sitting without a jury;

12 ‘‘(C) the jury that determined the defend13 ant’s guilt was discharged for good cause; or

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

15 under this section, reconsideration of the sen16 tence under the section is necessary; or

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

18 defendant and with the approval of the attorney for

19 the Government.

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

21 of 12 members, unless, at any time before the conclusion

22 of the hearing, the parties stipulate, with the approval of

23 the court, that it shall consist of a lesser number.
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1 ‘‘(c) PROOF OF MITIGATING AND AGGRAVATING FAC2 TORS.—At the hearing, information may be presented con3 cerning—

4 ‘‘(1) any matter relating to any mitigating fac5 tor listed in section 3592 and any other mitigating

6 factor; and

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

8 factor listed in section 3592 for which notice has

9 been provided under subsection (a)(2) and (if infor10 mation is presented relating to such a listed factor)

11 any other aggravating factor for which notice has

12 been so provided.

13 Information presented may include the trial transcript and

14 exhibits. Any other information relevant to such mitigat15 ing or aggravating factors may be presented by either the

16 Government or the defendant, regardless of its admissibil17 ity under the rules governing admission of evidence at

18 criminal trials, except that information may be excluded

19 if its probative value is outweighed by the danger of creat20 ing unfair prejudice, confusing the issues, or misleading

21 the jury. The Government and the defendant shall be per22 mitted to rebut any information received at the hearing

23 and shall be given fair opportunity to present argument

24 as to the adequacy of the information to establish the ex25 istence of any aggravating or mitigating factor and as to
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1 the appropriateness in that case of imposing a sentence

2 of death. The Government shall open the argument. The

3 defendant shall be permitted to reply. The Government

4 shall then be permitted to reply in rebuttal. The burden

5 of establishing the existence of an aggravating factor is

6 on the Government, and it is not satisfied unless the exist7 ence of such a factor is established beyond a reasonable

8 doubt. The burden of establishing the existence of any

9 mitigating factor is on the defendant, and it is not satis10 fied unless the existence of such a factor is established

11 by a preponderance of the evidence.

12 ‘‘(d) RETURN OF SPECIAL FINDINGS.—The jury, or

13 if there is no jury, the court, shall consider all the informa14 tion received during the hearing. It shall return special

15 findings identifying any aggravating factor or factors set

16 forth in section 3592 found to exist and any other aggra17 vating factor for which notice has been provided under

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

19 a mitigating factor may be made by 1 or more members

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

21 existence of a mitigating factor may consider such factor

22 established for purposes of this section regardless of the

23 number of jurors who concur that the factor has been es24 tablished. A finding with respect to any aggravating factor

25 must be unanimous. If no aggravating factor set forth in
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1 section 3592 is found to exist, the court shall impose a

2 sentence other than death authorized by law.

3 ‘‘(e) RETURN OF A FINDING CONCERNING A SEN4 TENCE OF DEATH.—If, in the case of—

5 ‘‘(1) an offense described in section 3591(1), an

6 aggravating factor required to be considered under

7 section 3592(b) is found to exist; or

8 ‘‘(2) an offense described in section 3591 (2) or

9 (6), an aggravating factor required to be considered

10 under section 3592(c) is found to exist,

11 the jury, or if there is no jury, the court, shall then con12 sider whether the aggravating factor or factors found to

13 exist outweigh any mitigating factor or factors. The jury,

14 or if there is no jury, the court, shall recommend a sen15 tence of death if it unanimously finds at least 1 aggravat16 ing factor and no mitigating factor or if it finds 1 or more

17 aggravating factors which outweigh any mitigating fac18 tors. In any other case, it shall not recommend a sentence

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

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

21 or other arbitrary factors in its decision and should make

22 such a recommendation as the information warrants.

23 ‘‘(f) SPECIAL PRECAUTION TO ENSURE AGAINST

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

25 court, before the return of a finding under subsection (e),
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1 shall instruct the jury that, in considering whether a sen2 tence of death is justified, it shall not consider the race,

3 color, religious beliefs, national origin, or sex of the de4 fendant or of any victim and that the jury is not to rec5 ommend a sentence of death unless it has concluded that

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

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

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

9 may be. The jury, upon return of a finding under sub10 section (e), shall also return to the court a certificate,

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

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

13 or any victim was not involved in reaching the juror’s indi14 vidual decision and that the individual juror would have

15 made the same recommendation regarding a sentence for

16 the crime in question no matter what the race, color, reli17 gious beliefs, national origin, or sex of the defendant or

18 any victim may be.

19 ‘‘§ 3594. Imposition of a sentence of death

20 ‘‘Upon the recommendation under section 3593(e),

21 that a sentence of death be imposed, the court shall sen22 tence the defendant to death. Otherwise the court shall

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

24 Notwithstanding any other law, if the maximum term of

25 imprisonment for the offense is life imprisonment, the
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1 court may impose a sentence of life imprisonment without

2 the possibility of release or furlough.

3 ‘‘§ 3595. Review of a sentence of death

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

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

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

7 appeal of the sentence must be filed within the time speci8 fied for the filing of a notice of appeal of the judgment

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

10 may be consolidated with an appeal of the judgment of

11 conviction and shall have priority over all other cases.

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

13 entire record in the case, including—

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

15 ‘‘(2) the information submitted during the sen16 tencing hearing;

17 ‘‘(3) the procedures employed in the sentencing

18 hearing; and

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

20 3593(d).

21 ‘‘(c) DECISION AND DISPOSITION.—

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

23 ‘‘(A) the sentence of death was not im24 posed under the influence of passion, prejudice,

25 or any other arbitrary factor; and
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1 ‘‘(B) the evidence and information support

2 the special findings of the existence of an ag3 gravating factor or factors,

4 it shall affirm the sentence.

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

6 shall remand the case for reconsideration under sec7 tion 3593 or for imposition of another authorized

8 sentence as appropriate.

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

10 the reasons for its disposition of an appeal of sen11 tence of death under this section.

12 ‘‘§ 3596. Implementation of a sentence of death

13 ‘‘(a) IN GENERAL.—A person who has been sen14 tenced to death pursuant to this chapter shall be commit15 ted to the custody of the Attorney General until exhaus16 tion of the procedures for appeal of the judgment of con17 viction and for review of the sentence. When the sentence

18 is to be implemented, the Attorney General shall release

19 the person sentenced to death to the custody of a United

20 States marshal, who shall supervise implementation of the

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

22 in which the sentence is imposed. If the law of that State

23 does not provide for implementation of a sentence of

24 death, the court shall designate another State, the law of
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1 which does so provide, and the sentence shall be imple2 mented in the manner prescribed by that law.

3 ‘‘(b) IMPAIRED MENTAL CAPACITY, AGE, OR PREG4 NANCY.—A sentence of death shall not be carried out upon

5 a person who is under 18 years of age at the time the

6 crime was committed. A sentence of death shall not be

7 carried out upon a person who is mentally retarded. A sen8 tence of death shall not be carried out upon a person who,

9 as a result of mental disability—

10 ‘‘(1) cannot understand the nature of the pend11 ing proceedings, what the person was tried for, the

12 reason for the punishment, or the nature of the

13 punishment; or

14 ‘‘(2) lacks the capacity to recognize or under15 stand facts that would make the punishment unjust

16 or unlawful or lacks the ability to convey such infor17 mation to counsel or to the court.

18 A sentence of death shall not be carried out upon a woman

19 while she is pregnant.

20 ‘‘(c) EMPLOYEES MAY DECLINE TO PARTICIPATE.—

21 No employee of any State department of corrections or

22 the Federal Bureau of Prisons and no employee providing

23 services to that department or bureau under contract shall

24 be required, as a condition of that employment or contrac25 tual obligation, to be in attendance at or to participate
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1 in any execution carried out under this section, if such

2 participation is contrary to the moral or religious convic3 tions of the employee. For purposes of this subsection, the

4 term ‘participate in any execution’ includes personal prep5 aration of the condemned individual and the apparatus

6 used for the execution, and supervision of the activities

7 of other personnel in carrying out such activities.

8 ‘‘§ 3597. Use of State facilities

9 ‘‘A United States marshal charged with supervising

10 the implementation of a sentence of death may use appro11 priate State or local facilities for the purpose, may use

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

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

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

15 Attorney General.

16 ‘‘§ 3598. Appointment of counsel

17 ‘‘(a) FEDERAL CAPITAL CASES.—

18 ‘‘(1) REPRESENTATION OF INDIGENT DEFEND19 ANTS.—Notwithstanding any other law, this sub20 section shall govern the appointment of counsel for

21 a defendant against whom a sentence of death is

22 sought, or on whom a sentence of death has been

23 imposed, for an offense against the United States,

24 when the defendant is or becomes financially unable

25 to obtain adequate representation. Such a defendant
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1 shall be entitled to appointment of counsel from the

2 commencement of trial proceedings until 1 of the

3 conditions specified in section 3599(b) has occurred.

4 ‘‘(2) REPRESENTATION BEFORE FINALITY OF

5 JUDGMENT.—A defendant within the scope of this

6 subsection shall have counsel appointed for trial rep7 resentation as provided in section 3005. At least 1

8 counsel so appointed shall continue to represent the

9 defendant until the conclusion of direct review of the

10 judgment, unless replaced by the court with other

11 qualified counsel.

12 ‘‘(3) REPRESENTATION AFTER FINALITY OF

13 JUDGMENT.—When a judgment imposing a sentence

14 of death has become final through affirmance by the

15 Supreme Court on direct review, denial of certiorari

16 by the Supreme Court on direct review, or expiration

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

18 appeals or the Supreme Court, the Government shall

19 promptly notify the district court that imposed the

20 sentence. Within 10 days after receipt of the notice,

21 the district court shall proceed to make a determina22 tion whether the defendant is eligible under this sub23 section for appointment of counsel for subsequent

24 proceedings. On the basis of the determination, the

25 court shall issue an order—
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1 ‘‘(A) appointing 1 or more counsel to rep2 resent the defendant upon a finding that the

3 defendant is financially unable to obtain ade4 quate representation and wishes to have counsel

5 appointed or is unable competently to decide

6 whether to accept or reject appointment of

7 counsel;

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

9 that the defendant rejected appointment of

10 counsel and made the decision with an under11 standing of its legal consequences; or

12 ‘‘(C) denying the appointment of counsel

13 upon a finding that the defendant is financially

14 able to obtain adequate representation. Counsel

15 appointed pursuant to this paragraph shall be

16 different from the counsel who represented the

17 defendant at trial and on direct review unless

18 the defendant and counsel request a continu19 ation or renewal of the earlier representation.

20 ‘‘(4) STANDARDS FOR COMPETENCE OF COUN21 SEL.—In relation to a defendant who is entitled to

22 appointment of counsel under this subsection, at

23 least 1 counsel appointed for trial representation

24 must have been admitted to the bar for at least 5

25 years and have at least 3 years of experience in the
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1 trial of felony cases in Federal district court. If new

2 counsel is appointed after judgment, at least one

3 counsel so appointed must have been admitted to the

4 bar for at least 5 years and have at least 3 years

5 of experience in the litigation of felony cases in the

6 Federal courts of appeals or the Supreme Court.

7 The court, for good cause, may appoint counsel who

8 does not meet these standards, but whose back9 ground, knowledge, or experience would otherwise

10 enable counsel to properly represent the defendant,

11 with due consideration of the seriousness of the pen12 alty and the nature of the litigation.

13 ‘‘(5) APPLICABILITY OF CRIMINAL JUSTICE

14 ACT.—Except as otherwise provided in this sub15 section, section 3006A shall apply to appointments

16 under this subsection.

17 ‘‘(6) CLAIMS OF INEFFECTIVENESS OF COUN18 SEL.—The ineffectiveness or incompetence of coun19 sel during proceedings on a motion under section

20 2255 of title 28 in a capital case shall not be a

21 ground for relief from the judgment or sentence in

22 any proceeding. The limitation in the preceding sen23 tence shall not preclude the appointment of different

24 counsel at any stage of the proceedings.
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1 ‘‘(b) STATE CAPITAL CASES.—The laws of the

2 United States shall not be construed to impose any re3 quirement with respect to the appointment of counsel in

4 any proceeding in a State court or other State proceeding

5 in a capital case, other than any requirement imposed by

6 the Constitution of the United States. In a proceeding

7 under section 2254 of title 28 relating to a State capital

8 case, or any subsequent proceeding on review, appoint9 ment of counsel for a petitioner who is or becomes finan10 cially unable to afford counsel shall be in the discretion

11 of the court, except as provided by a rule promulgated by

12 the Supreme Court pursuant to statutory authority. Such

13 appointment of counsel shall be governed by section

14 3006A.

15 ‘‘§ 3599. Collateral attack on judgment imposing sen16 tence of death

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

18 In a case in which a sentence of death has been imposed

19 and the judgment has become final under section

20 3598(a)(3), a motion in the case under section 2255 of

21 title 28 shall be filed within 90 days after the issuance

22 of the order relating to appointment of counsel under sec23 tion 3598(a)(3). The court in which the motion is filed,

24 for good cause, may extend the time for filing for a period

25 not exceeding 60 days. A motion described in this section
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1 shall have priority over all noncapital matters in the dis2 trict court and in the court of appeals on review of the

3 district court’s decision.

4 ‘‘(b) STAY OF EXECUTION.—The execution of a sen5 tence of death shall be stayed in the course of direct review

6 of the judgment and during the litigation of an initial mo7 tion in the case under section 2255 of title 28. The stay

8 shall run continuously following imposition of the sentence

9 and shall expire if—

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

11 section 2255 of title 28, within the time specified in

12 subsection (a) or fails to make a timely application

13 for court of appeals review following the denial of

14 such a motion by a district court;

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

16 of appeals review under section 2255 of title 28, the

17 motion under that section is denied—

18 ‘‘(A) the time for filing a petition for cer19 tiorari has expired and no petition has been

20 filed;

21 ‘‘(B) a timely petition for certiorari was

22 filed and the Supreme Court denied the

23 petition; or

24 ‘‘(C) a timely petition for certiorari was

25 filed and upon consideration of the case, the
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1 Supreme Court disposed of it in a manner that

2 left the capital sentence undisturbed; or

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

4 counsel and after having been advised of the con5 sequences of the decision, the defendant waives the

6 right to file a motion under section 2255 of title 28.

7 ‘‘(c) FINALITY OF THE DECISION ON REVIEW.—If 1

8 of the conditions specified in subsection (b) has occurred,

9 no court shall have the authority to enter a stay of execu10 tion or grant relief in the case unless—

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

12 is a claim not presented in earlier proceedings;

13 ‘‘(2) the failure to raise the claim is—

14 ‘‘(A) the result of governmental action in

15 violation of the Constitution or laws of the

16 United States;

17 ‘‘(B) the result of the Supreme Court rec18 ognition of a new Federal right that is retro19 actively applicable; or

20 ‘‘(C) based on a factual predicate that

21 could not have been discovered through the ex22 ercise of reasonable diligence in time to present

23 the claim in earlier proceedings; and

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

25 sufficient, if proven, to undermine the court’s con-
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1 fidence in the determination of guilt on the offense

2 or offenses for which the death penalty was

3 imposed.’’.

4 (2) CLERICAL AMENDMENT.—The table of

5 parts at the beginning of part II of title 18, United

6 States Code, is amended by inserting after the item

7 relating to chapter 227 the following new item:

‘‘228. Death penalty procedures ................................................... 3591’’.

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