I

103D CONGRESS

2D SESSION H. R. 4079

To reform habeas corpus.

IN THE HOUSE OF REPRESENTATIVES

MARCH 17, 1994

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

on the Judiciary

A BILL

To reform habeas corpus.

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

3 TITLE I—POST CONVICTION PE4 TITIONS: GENERAL HABEAS

5 CORPUS REFORM

6 SEC. 101. PERIOD OF LIMITATION FOR FILING WRIT OF HA7 BEAS CORPUS FOLLOWING FINAL JUDGMENT

8 OF A STATE COURT.

9 Section 2244 of title 28, United States Code, is

10 amended by adding at the end the following:

11 ‘‘(d) A one-year period of limitation shall apply to an

12 application for a writ of habeas corpus by a person in cus-
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1 tody pursuant to the judgment of a State court. The limi2 tation period shall run from the latest of the following

3 times:

4 ‘‘(1) The time at which State remedies are ex5 hausted.

6 ‘‘(2) The time at which the impediment to filing

7 an application created by State action in violation of

8 the Constitution or laws of the United States is re9 moved, where the applicant was prevented from fil10 ing by such State action.

11 ‘‘(3) The time at which the Federal right as12 serted was initially recognized by the Supreme

13 Court, where the right has been newly recognized by

14 the Court and is retroactively applicable.

15 ‘‘(4) The time at which the factual predicate of

16 the claim or claims presented could have been dis17 covered through the exercise of reasonable dili18 gence.’’.

19 SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE

20 CERTIFICATES OF PROBABLE CAUSE FOR AP21 PEAL IN HABEAS CORPUS AND FEDERAL COL22 LATERAL RELIEF PROCEEDINGS.

23 Section 2253 of title 28, United States Code, is

24 amended to read as follows:
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1 ‘‘§ 2253. Appeal

2 ‘‘(a) In a habeas corpus proceeding or a proceeding

3 under section 2255 of this title before a circuit or district

4 judge, the final order shall be subject to review, on appeal,

5 by the court of appeals for the circuit where the proceed6 ing is had.

7 ‘‘(b) There shall be no right of appeal from such an

8 order in a proceeding to test the validity of a warrant to

9 remove, to another district or place for commitment or

10 trial, a person charged with a criminal offense against the

11 United States, or to test the validity of his detention pend12 ing removal proceedings.

13 ‘‘(c) An appeal may not be taken to the court of ap14 peals from the final order in a habeas corpus proceeding

15 where the detention complained of arises out of process

16 issued by a State court, or from the final order in a pro17 ceeding under section 2255 of this title, unless a circuit

18 justice or judge issues a certificate of probable cause.’’.

19 SEC. 103. CONFORMING AMENDMENT TO THE RULES OF AP20 PELLATE PROCEDURE.

21 Federal Rule of Appellate Procedure 22 is amended

22 to read as follows:

23 ‘‘RULE 22

24 ‘‘HABEAS CORPUS AND SECTION 2255 PROCEEDINGS

25 ‘‘(a) APPLICATION FOR AN ORIGINAL WRIT OF HA26 BEAS CORPUS.—An application for a writ of habeas cor-
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1 pus shall be made to the appropriate district court. If ap2 plication is made to a circuit judge, the application will

3 ordinarily be transferred to the appropriate district court.

4 If an application is made to or transferred to the district

5 court and denied, renewal of the application before a cir6 cuit judge is not favored; the proper remedy is by appeal

7 to the court of appeals from the order of the district court

8 denying the writ.

9 ‘‘(b) NECESSITY OF CERTIFICATE OF PROBABLE

10 CAUSE FOR APPEAL.—In a habeas corpus proceeding in

11 which the detention complained of arises out of process

12 issued by a State court, and in a motion proceeding pursu13 ant to section 2255 of title 28, United States Code, an

14 appeal by the applicant or movant may not proceed unless

15 a circuit judge issues a certificate of probable cause. If

16 a request for a certificate of probable cause is addressed

17 to the court of appeals, it shall be deemed addressed to

18 the judges thereof and shall be considered by a circuit

19 judge or judges as the court deems appropriate. If no ex20 press request for a certificate is filed, the notice of appeal

21 shall be deemed to constitute a request addressed to the

22 judges of the court of appeals. If an appeal is taken by

23 a State or the Government or its representative, a certifi24 cate of probable cause is not required.’’.
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1 SEC. 104. DISCRETION TO DENY HABEAS CORPUS APPLICA2 TION DESPITE FAILURE TO EXHAUST STATE

3 REMEDIES.

4 Section 2254(b) of title 28, United State Code, is

5 amended to read as follows:

6 ‘‘(b) An application for a writ of habeas corpus in

7 behalf of a person in custody pursuant to the judgment

8 of a State court shall not be granted unless it appears

9 that the applicant has exhausted the remedies available

10 in the courts of the State, or that there is either an ab11 sence of available State corrective process or the existence

12 of circumstances rendering such process ineffective to pro13 tect the rights of the applicant. An application may be

14 denied on the merits notwithstanding the failure of the

15 applicant to exhaust the remedies available in the courts

16 of the State.’’.

17 SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRIS18 ONERS FILING FOR COLLATERAL REMEDY.

19 Section 2255 of title 28, United States Code, is

20 amended by striking the second paragraph and the penul21 timate paragraph thereof, and by adding at the end the

22 following new paragraphs:

23 ‘‘A two-year period of limitation shall apply to a mo24 tion under this section. The limitation period shall run

25 from the latest of the following times:
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1 ‘‘(1) The time at which the judgment of convic2 tion becomes final.

3 ‘‘(2) The time at which the impediment to mak4 ing a motion created by governmental action in vio5 lation of the Constitution or laws of the United

6 States is removed, where the movant was prevented

7 from making a motion by such governmental action.

8 ‘‘(3) The time at which the right asserted was

9 initially recognized by the Supreme Court, where the

10 right has been newly recognized by the Court and is

11 retroactively applicable.

12 ‘‘(4) The time at which the factual predicate of

13 the claim or claims presented could have been dis14 covered through the exercise of reasonable dili15 gence.’’.

16 TITLE II—SPECIAL PROCEDURES

17 FOR COLLATERAL PROCEED18 INGS IN CAPITAL CASES

19 SEC. 201. DEATH PENALTY LITIGATION PROCEDURES.

20 (a) IN GENERAL.—Title 28, United States Code, is

21 amended by inserting the following new chapter after

22 chapter 153:
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1 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

2 PROCEDURES IN CAPITAL CASES

‘‘Sec.

‘‘2256. Prisoners in State custody subject to capital sentence; appointment of

counsel; requirement of rule of court or statute; procedures for

appointment.

‘‘2257. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.

‘‘2258. Filing of habeas corpus petition; time requirements; tolling rules.

‘‘2259. Evidentiary hearings; scope of Federal review; district court adjudication.

‘‘2260. Certificate of probable cause inapplicable.

‘‘2261. Application to State unitary review procedures.

‘‘2262. Limitation periods for determining petitions.

‘‘2263. Rule of construction.

3 ‘‘§ 2256. Prisoners in State custody subject to capital

4 sentence; appointment of counsel; re5 quirement of rule of court or statute; pro6 cedures for appointment

7 ‘‘(a) This chapter shall apply to cases arising under

8 section 2254 brought by prisoners in State custody who

9 are subject to a capital sentence. It shall apply only if the

10 provisions of subsections (b) and (c) are satisfied.

11 ‘‘(b) This chapter is applicable if a State establishes

12 by rule of its court of last resort or by statute a mecha13 nism for the appointment, compensation and payment of

14 reasonable litigation expenses of competent counsel in

15 State postconviction proceedings brought by indigent pris16 oners whose capital convictions and sentences have been

17 upheld on direct appeal to the court of last resort in the

18 State or have otherwise become final for State law pur-
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1 poses. The rule of court or statute must provide standards

2 of competency for the appointment of such counsel.

3 ‘‘(c) Any mechanism for the appointment, compensa4 tion and reimbursement of counsel as provided in sub5 section (b) must offer counsel to all State prisoners under

6 capital sentence and must provide for the entry of an

7 order by a court of record: (1) appointing one or more

8 counsel to represent the prisoner upon a finding that the

9 prisoner is indigent and accepted the offer or is unable

10 competently to decide whether to accept or reject the offer;

11 (2) finding, after a hearing if necessary, that the prisoner

12 rejected the offer of counsel and made the decision with

13 an understanding of its legal consequences; or (3) denying

14 the appointment of counsel upon a finding that the pris15 oner is not indigent.

16 ‘‘(d) No counsel appointed pursuant to subsections

17 (b) and (c) to represent a State prisoner under capital

18 sentence shall have previously represented the prisoner at

19 trial or on direct appeal in the case for which the appoint20 ment is made unless the prisoner and counsel expressly

21 request continued representation.

22 ‘‘(e) The ineffectiveness or incompetence of counsel

23 during State or Federal collateral postconviction proceed24 ings in a capital case shall not be a ground for relief in

25 a proceeding arising under section 2254 of this chapter.
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1 This limitation shall not preclude the appointment of dif2 ferent counsel, on the court’s own motion or at the request

3 of the prisoner, at any phase of State or Federal

4 postconviction proceedings on the basis of the ineffective5 ness or incompetence of counsel in such proceedings.

6 ‘‘§ 2257. Mandatory stay of execution; duration; limits

7 on stays of execution; successive peti8 tions

9 ‘‘(a) Upon the entry in the appropriate State court

10 of record of an order under section 2256(c), a warrant

11 or order setting an execution date for a State prisoner

12 shall be stayed upon application to any court that would

13 have jurisdiction over any proceedings filed under section

14 2254. The application must recite that the State has in15 voked the postconviction review procedures of this chapter

16 and that the scheduled execution is subject to stay.

17 ‘‘(b) A stay of execution granted pursuant to sub18 section (a) shall expire if—

19 ‘‘(1) a State prisoner fails to file a habeas cor20 pus petition under section 2254 within the time re21 quired in section 2258, or fails to make a timely ap22 plication for court of appeals review following the de23 nial of such a petition by a district court;

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

25 of appeals review under section 2254 the petition for
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1 relief is denied and (A) the time for filing a petition

2 for certiorari has expired and no petition has been

3 filed; (B) a timely petition for certiorari was filed

4 and the Supreme Court denied the petition; or (C)

5 a timely petition for certiorari was filed and upon

6 consideration of the case, the Supreme Court dis7 posed of it in a manner that left the capital sentence

8 undisturbed; or

9 ‘‘(3) before a court of competent jurisdiction, in

10 the presence of counsel and after having been ad11 vised of the consequences of his decision, a State

12 prisoner under capital sentence waives the right to

13 pursue habeas corpus review under section 2254.

14 ‘‘(c) If one of the conditions in subsection (b) has

15 occurred, no Federal court thereafter shall have the au16 thority to enter a stay of execution or grant relief in a

17 capital case unless—

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

19 is a claim not previously presented in the State or

20 Federal courts;

21 ‘‘(2) the failure to raise the claim is (A) the re22 sult of State action in violation of the Constitution

23 or laws of the United States; (B) the result of the

24 Supreme Court recognition of a new Federal right

25 that is retroactively applicable; or (C) based on a
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1 factual predicate that could not have been discovered

2 through the exercise of reasonable diligence in time

3 to present the claim for State or Federal

4 postconviction review; and

5 ‘‘(3) The facts underlying the claim would be

6 sufficient to establish by clear and convincing evi7 dence that but for constitutional error, no reasonable

8 fact finder would have found the petitioner guilty of

9 the underlying offense or eligible for the death pen10 alty under State law.

11 ‘‘(d) Notwithstanding any other provision of law, no

12 Federal district court or appellate judge shall have the au13 thority to enter a stay of execution, issue injunctive relief,

14 or grant any equitable or other relief in a capital case on

15 any successive habeas petition (or other action which fol16 lows the final determination of a first habeas corpus peti17 tion) unless the court first determines the petition or other

18 action does not constitute an abuse of the writ. This deter19 mination shall be made only by the district judge or appel20 late panel who adjudicated the merits of the original ha21 beas petition (or to the district judge or appellate panel

22 to which the case may have been subsequently assigned

23 as a result of the unavailability of the original court or

24 judges). In the Federal courts of appeal, a stay may issue

25 pursuant to the terms of this provision only when a major-
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1 ity of the original panel or majority of the active judges

2 determines the petition does not constitute an abuse of

3 the writ.

4 ‘‘§ 2258. Filing of habeas corpus petition; time re5 quirements; tolling rules

6 ‘‘Any petition for habeas corpus relief under section

7 2254 must be filed in the appropriate district court within

8 one hundred and eighty days from the filing in the appro9 priate State court of record of an order under section

10 2256(c). The time requirements established by this section

11 shall be tolled—

12 ‘‘(1) from the date that a petition for certiorari

13 is filed in the Supreme Court until the date of final

14 disposition of the petition if a State prisoner files

15 the petition to secure review by the Supreme Court

16 of the affirmance of a capital sentence on direct re17 view by the court of last resort of the State or other

18 final State court decision on direct review;

19 ‘‘(2) during any period in which a State pris20 oner under capital sentence has a properly filed re21 quest for postconviction review pending before a

22 State court of competent jurisdiction; if all State fil23 ing rules are met in a timely manner, this period

24 shall run continuously from the date that the State

25 prisoner initially files for postconviction review until
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1 final disposition of the case by the highest court of

2 the State, but the time requirements established by

3 this section are not tolled during the pendency of a

4 petition for certiorari before the Supreme Court ex5 cept as provided in paragraph (1); and

6 ‘‘(3) during an additional period not to exceed

7 sixty days, if (A) a motion for an extension of time

8 is filed in the Federal district court that would have

9 proper jurisdiction over the case upon the filing of

10 a habeas corpus petition under section 2254; and

11 (B) a showing of good cause is made for the failure

12 to file the habeas corpus petition within the time pe13 riod established by this section.

14 ‘‘§ 2259. Evidentiary hearings; scope of Federal re15 view; district court adjudication

16 ‘‘(a) Whenever a State prisoner under a capital sen17 tence files a petition for habeas corpus relief to which this

18 chapter applies, the district court shall—

19 ‘‘(1) determine the sufficiency of the record for

20 habeas corpus review based on the claims actually

21 presented and litigated in the State courts except

22 when the prisoner can show that the failure to raise

23 or develop a claim in the State courts is (A) the re24 sult of State action in violation of the Constitution

25 or laws of the United States; (B) the result of the
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1 Supreme Court recognition of a new Federal right

2 that is retroactively applicable; or (C) based on a

3 factual predicate that could not have been discovered

4 through the exercise of reasonable diligence in time

5 to present the claim for State postconviction review;

6 and

7 ‘‘(2) conduct any requested evidentiary hearing

8 necessary to complete the record for habeas corpus

9 review.

10 ‘‘(b) Upon the development of a complete evidentiary

11 record, the district court shall rule on the claims that are

12 properly before it.

13 ‘‘§ 2260. Certificate of probable cause inapplicable

14 ‘‘The requirement of a certificate of probable cause

15 in order to appeal from the district court to the court of

16 appeals does not apply to habeas corpus cases subject to

17 the provisions of this chapter except when a second or suc18 cessive petition is filed.

19 ‘‘§ 2261. Application to State unitary review proce20 dure

21 ‘‘(a) For purposes of this section, a ‘unitary review’

22 procedure means a State procedure that authorizes a per23 son under sentence of death to raise, in the course of di24 rect review of the judgment, such claims as could be raised

25 on collateral attack. The provisions of this chapter shall
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1 apply, as provided in this section, in relation to a State

2 unitary review procedure if the State establishes by rule

3 of its court of last resort or by statute a mechanism for

4 the appointment, compensation and payment of reasonable

5 litigation expenses of competent counsel in the unitary re6 view proceedings, including expenses relating to the litiga7 tion of collateral claims in the proceedings. The rule of

8 court or statute must provide standards of competency for

9 the appointment of such counsel.

10 ‘‘(b) A unitary review procedure, to qualify under this

11 section, must include an offer of counsel following trial

12 for the purpose of representation on unitary review, and

13 entry of an order, as provided in section 2256(c), concern14 ing appointment of counsel or waiver or denial of appoint15 ment of counsel for that purpose. No counsel appointed

16 to represent the prisoner in the unitary review proceedings

17 shall have previously represented the prisoner at trial in

18 the case for which the appointment is made unless the

19 prisoner and counsel expressly request continued represen20 tation.

21 ‘‘(c) Sections 2257, 2258, 2259, 2260, and 2262

22 shall apply in relation to cases involving a sentence of

23 death from any State having a unitary review procedure

24 that qualifies under this section. References to State ‘post25 conviction review’ and ‘direct review’ in those sections
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1 shall be understood as referring to unitary review under

2 the State procedure. The references in sections 2257(a)

3 and 2258 to ‘an order under section 2256(c)’ shall be un4 derstood as referring to the post-trial order under sub5 section (b) concerning representation in the unitary review

6 proceedings, but if a transcript of the trial proceedings

7 is unavailable at the time of the filing of such an order

8 in the appropriate State court, then the start of the one

9 hundred and eighty day limitation period under section

10 2258 shall be deferred until a transcript is made available

11 to the prisoner or his counsel.

12 ‘‘§ 2262. Limitation periods for determining petitions

13 ‘‘(a)(1) A Federal district court shall determine such

14 a petition or motion within 60 days of any argument heard

15 on an evidentiary hearing, or where no evidentiary hearing

16 is held, within 60 days of any final argument heard in

17 the case.

18 ‘‘(2)(A) The court of appeals shall determine any ap19 peal relating to such a petition or motion within 90 days

20 after the filing of any reply brief or within 90 days after

21 such reply brief would be due. For purposes of this provi22 sion, any reply brief shall be due within 14 days of the

23 opposition brief.

24 ‘‘(B) The court of appeals shall decide any petition

25 for rehearing and or request by an appropriate judge for
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1 rehearing en banc within 20 days of the filing of such a

2 petition or request unless a responsive pleading is required

3 in which case the court of appeals shall decide the applica4 tion within 20 days of the filing of the responsive pleading.

5 If en banc consideration is granted, the en banc court shall

6 determine the appeal within 90 days of the decision to

7 grant such consideration.

8 ‘‘(3) The time limitations contained in paragraphs

9 (1) and (2) may be extended only once for 20 days, upon

10 an express good cause finding by the court that the inter11 ests of justice warrant such a one-time extension. The spe12 cific grounds for the good cause finding shall be set forth

13 in writing in any extension order of the court.

14 ‘‘(4) Since the matters under paragraphs (1) and

15 (2)(A) are to be handled on a priority basis, the time from

16 filing of the petition or motion to final argument (under

17 paragraph (1)) or of the notice of appeal to the hearing

18 of the appeal (under paragraph (2)(A)) shall not exceed

19 4 months, unless exceptional circumstances require a

20 longer period. Where such time period exceeds 4 months

21 in any petition or motion (under paragraph (2)(A)), the

22 court shall set forth in writing the exceptional cir23 cumstances causing the delay.

24 ‘‘(b) The time limitations under subsection (a) shall

25 apply to an initial petition or motion, and to any second
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1 or successive petition or motion. The same limitations

2 shall also apply to the re-determination of a petition or

3 motion or related appeal following a remand by the court

4 of appeals or the Supreme Court for further proceedings,

5 and in such a case the limitation period shall run from

6 the date of the remand.

7 ‘‘(c) The time limitations under this section shall not

8 be construed to entitle a petitioner or movant to a stay

9 of execution, to which the petitioner or movant would oth10 erwise not be entitled, for the purpose of litigating any

11 petition, motion, or appeal.

12 ‘‘(d) The failure of a court to meet or comply with

13 the time limitations under this section shall not be a

14 ground for granting relief from a judgment of conviction

15 or sentence. The State or Government may enforce the

16 time limitations under this section by applying to the court

17 of appeals or the Supreme Court for a writ of mandamus.

18 ‘‘(e) The Administrative Office of United States

19 Courts shall report annually to Congress on the compli20 ance by the courts with the time limits established in this

21 section.

22 ‘‘§ 2263. Rule of construction

23 ‘‘This chapter shall be construed to promote the expe24 ditious conduct and conclusion of State and Federal court

25 review in capital cases.’’.
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1 (b) CLERICAL AMENDMENT.—The table of chapters

2 at the beginning of part VI of title 28, United States Code,

3 is amended by inserting after the item relating to chapter

4 153 the following new item:

‘‘154. Special habeas corpus procedures in capital cases 2256’’.

5 TITLE III—FUNDING FOR LITIGA6 TION OF FEDERAL HABEAS

7 CORPUS PETITIONS IN CAP8 ITAL CASES

9 SEC. 301. FUNDING FOR DEATH PENALTY PROSECUTIONS.

10 Part E of title I of the Omnibus Crime Control and

11 Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is

12 amended by adding at the end the following new section:

13 ‘‘SEC. 515. Notwithstanding any other provision of

14 this subpart, the Director shall provide grants to the

15 States, from the funding allocated pursuant to section

16 511, for the purpose of supporting litigation pertaining to

17 Federal habeas corpus petitions in capital cases. The total

18 funding available for such grants within any fiscal year

19 shall be equal to the funding provided to capital resource

20 centers, pursuant to Federal appropriation, in the same

21 fiscal year.’’.

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