II

104TH CONGRESS

1ST SESSION S. 623

To reform habeas corpus procedures, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 24 (legislative day, MARCH 23), 1995

Mr. SPECTER (for himself and Mr. HATCH) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

A BILL

To reform habeas corpus procedures, and for other purposes.

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 ‘‘Habeas Corpus Reform

5 Act of 1995’’.

6 SEC. 2. FILING DEADLINES.

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

8 amended by adding at the end the following new sub9 section:

10 ‘‘(d)(1) A 1-year period of limitation shall apply to

11 an application for a writ of habeas corpus by a person
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1 in custody pursuant to the judgment of a State court. The

2 limitation period shall run from the latest of—

3 ‘‘(A) the date on which the judgment became

4 final by the conclusion of direct review or the expira5 tion of the time for seeking such review;

6 ‘‘(B) the date on 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, if the applicant was prevented from filing by

10 such State action;

11 ‘‘(C) the date on which the constitutional right

12 asserted was initially recognized by the Supreme

13 Court, if the right has been newly recognized by the

14 Supreme Court and is made retroactively applicable;

15 or

16 ‘‘(D) the date on which the factual predicate of

17 the claim or claims presented could have been dis18 covered through the exercise of due diligence.

19 ‘‘(2) The time during which a properly filed applica20 tion for State post-conviction or other collateral review

21 with respect to the pertinent judgment or claim shall not

22 be counted toward any period of limitation under this sub23 section.
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1 SEC. 3. APPEAL.

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

3 amended to read as follows:

4 ‘‘§ 2253. Appeal

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

6 under section 2255 before a district judge, the final order

7 shall be subject to review, on appeal, by the court of ap8 peals for the circuit in which the proceeding is held.

9 ‘‘(b) There shall be no right of appeal from a final

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

11 remove to another district or place for commitment or trial

12 a person charged with a criminal offense against the Unit13 ed States, or to test the validity of such person’s detention

14 pending removal proceedings.

15 ‘‘(c)(1) Unless a circuit justice or judge issues a cer16 tificate of appealability, an appeal may not be taken to

17 the court of appeals from—

18 ‘‘(A) the final order in a habeas corpus proceed19 ing in which the detention complained of arises out

20 of process issued by a State court; or

21 ‘‘(B) the final order in a proceeding under sec22 tion 2255.

23 ‘‘(2) A certificate of appealability may issue under

24 paragraph (1) only if the applicant has made a substantial

25 showing of the denial of a constitutional right.
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1 ‘‘(3) The certificate of appealability under paragraph

2 (1) shall indicate which specific issue or issues satisfy the

3 showing required by paragraph (2).’’.

4 SEC. 4. AMENDMENT OF FEDERAL RULES OF APPELLATE

5 PROCEDURE.

6 Rule 22 of the Federal Rules of Appellate Procedure

7 is amended to read as follows:

8 ‘‘Rule 22. Habeas corpus and section 2255 pro9 ceedings

10 ‘‘(a) APPLICATION FOR THE ORIGINAL WRIT.—An

11 application for a writ of habeas corpus shall be made to

12 the appropriate district court. If application is made to

13 a circuit judge, the application shall be transferred to the

14 appropriate district court. If an application is made to or

15 transferred to the district court and denied, renewal of the

16 application before a circuit judge shall not be permitted.

17 The applicant may, pursuant to section 2253 of title 28,

18 United States Code, appeal to the appropriate court of ap19 peals from the order of the district court denying the writ.

20 ‘‘(b) CERTIFICATE OF APPEALABILITY.—In a habeas

21 corpus proceeding in which the detention complained of

22 arises out of process issued by a State court, an appeal

23 by the applicant for the writ may not proceed unless a

24 district or a circuit judge issues a certificate of

25 appealability pursuant to section 2253(c) of title 28, Unit-
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1 ed States Code. If an appeal is taken by the applicant,

2 the district judge who rendered the judgment shall either

3 issue a certificate of appealability or state the reasons why

4 such a certificate should not issue. The certificate or the

5 statement shall be forwarded to the court of appeals with

6 the notice of appeal and the file of the proceedings in the

7 district court. If the district judge has denied the certifi8 cate, the applicant for the writ may then request issuance

9 of the certificate by a circuit judge. If such a request is

10 addressed to the court of appeals, it shall be deemed ad11 dressed to the judges thereof and shall be considered by

12 a circuit judge or judges as the court deems appropriate.

13 If no express request for a certificate is filed, the notice

14 of appeal shall be deemed to constitute a request ad15 dressed to the judges of the court of appeals. If an appeal

16 is taken by a State or its representative, a certificate of

17 appealability is not required.’’.

18 SEC. 5. SECTION 2254 AMENDMENTS.

19 Section 2254 of title 28, United States Code, is

20 amended—

21 (1) by amending subsection (b) to read as fol22 lows:

23 ‘‘(b)(1) An application for a writ of habeas corpus

24 on behalf of a person in custody pursuant to the judgment
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1 of a State court shall not be granted unless it appears

2 that—

3 ‘‘(A) the applicant has exhausted the remedies

4 available in the courts of the State; or

5 ‘‘(B)(i) there is an absence of available State

6 corrective process; or

7 ‘‘(ii) circumstances exist that render such proc8 ess ineffective to protect the rights of the applicant.

9 ‘‘(2) An application for a writ of habeas corpus may

10 be denied on the merits, notwithstanding the failure of the

11 applicant to exhaust the remedies available in the courts

12 of the State.

13 ‘‘(3) A State shall not be deemed to have waived the

14 exhaustion requirement or be estopped from reliance upon

15 the requirement unless the State, through counsel, ex16 pressly waives the requirement.’’;

17 (2) by redesignating subsections (d), (e), and

18 (f) as subsections (e), (f), and (g), respectively;

19 (3) by inserting after subsection (c) the follow20 ing new subsection:

21 ‘‘(d) An application for a writ of habeas corpus on

22 behalf of a person in custody pursuant to the judgment

23 of a State court shall not be granted with respect to any

24 claim that was adjudicated on the merits in State court

25 proceedings unless the adjudication of the claim—
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1 ‘‘(1) resulted in a decision that was contrary to,

2 or involved an unreasonable application of, clearly

3 established Federal law, as determined by the Su4 preme Court of the United States; or

5 ‘‘(2) resulted in a decision that was based on an

6 unreasonable determination of the facts in light of

7 the evidence presented in the State court proceed8 ing.’’;

9 (4) by amending subsection (e), as redesignated

10 by paragraph (2), to read as follows:

11 ‘‘(e)(1) In a proceeding instituted by an application

12 for a writ of habeas corpus by a person in custody pursu13 ant to the judgment of a State court, a determination of

14 a factual issue made by a State court shall be presumed

15 to be correct. The applicant shall have the burden of re16 butting the presumption of correctness by clear and con17 vincing evidence.

18 ‘‘(2) If the applicant has failed to develop the factual

19 basis of a claim in State court proceedings, the court shall

20 not hold an evidentiary hearing on the claim unless the

21 applicant shows that—

22 ‘‘(A) the claim relies on—

23 ‘‘(i) a new rule of constitutional law, made

24 retroactive by the Supreme Court, that was pre25 viously unavailable; or
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1 ‘‘(ii) a factual predicate that could not

2 have been previously discovered through the ex3 ercise of due diligence; and

4 ‘‘(B) the facts underlying the claim would be

5 sufficient to establish by clear and convincing evi6 dence that but for constitutional error, no reasonable

7 factfinder would have found the applicant guilty of

8 the underlying offense.’’; and

9 (5) by adding at the end the following new sub10 sections:

11 ‘‘(h) Notwithstanding any other provision of law, in

12 all proceedings brought under this section, and any subse13 quent proceedings on review, appointment of counsel for

14 an applicant who is or becomes financially unable to afford

15 counsel shall be in the discretion of the court, except as

16 provided by a rule promulgated by the Supreme Court

17 pursuant to statutory authority. Appointment of counsel

18 under this section shall be governed by section 3006A of

19 title 18.

20 ‘‘(i) The ineffectiveness or incompetence of counsel

21 during Federal or State collateral post-conviction proceed22 ings shall not be a ground for relief in a proceeding arising

23 under section 2254.’’.
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1 SEC. 6. SECTION 2255 AMENDMENTS.

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

3 amended—

4 (1) by striking the second and fifth paragraphs;

5 and

6 (2) by adding at the end the following new

7 paragraphs:

8 ‘‘A one-year period of limitation shall apply to a mo9 tion under this section. The limitation period shall run

10 from the latest of—

11 ‘‘(1) the date on which the judgment of convic12 tion becomes final;

13 ‘‘(2) the date on which the impediment to mak14 ing a motion created by governmental action in vio15 lation of the Constitution or laws of the United

16 States is removed, if the movant was prevented from

17 making a motion by such governmental action;

18 ‘‘(3) the date on which the right asserted was

19 initially recognized by the Supreme Court, if that

20 right has been newly recognized by the Supreme

21 Court and is made retroactively applicable; or

22 ‘‘(4) the date on which the facts supporting the

23 claim or claims presented could have been discovered

24 through the exercise of due diligence.

25 ‘‘In all proceedings brought under this section, and

26 any subsequent proceedings on review, appointment of
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1 counsel for a movant who is or becomes financially unable

2 to afford counsel shall be in the discretion of the court,

3 except as provided by a rule promulgated by the Supreme

4 Court pursuant to statutory authority. Appointment of

5 counsel under this section shall be governed by section

6 3006A of title 18.

7 ‘‘A second or successive motion must be certified as

8 provided in section 2244 by a panel of the appropriate

9 court of appeals to contain—

10 ‘‘(1) newly discovered evidence that, if proven

11 and viewed in light of the evidence as a whole, would

12 be sufficient to establish by clear and convincing evi13 dence that no reasonable factfinder would have

14 found the movant guilty of the offense; or

15 ‘‘(2) a new rule of constitutional law, made ret16 roactive by the Supreme Court, that was previously

17 unavailable.’’.

18 SEC. 7. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.

19 (a) CONFORMING AMENDMENT TO SECTION

20 2244(a).—Section 2244(a) of title 28, United States

21 Code, is amended by striking ‘‘and the petition’’ and all

22 that follows through ‘‘by such inquiry.’’ and inserting ‘‘,

23 except as provided in section 2255.’’.
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1 (b) LIMITS ON SECOND OR SUCCESSIVE APPLICA2 TIONS.—Section 2244(b) of title 28, United States Code,

3 is amended to read as follows:

4 ‘‘(b)(1) A claim presented in a second or successive

5 habeas corpus application under section 2254 that was

6 presented in a prior application shall be dismissed.

7 ‘‘(2) A claim presented in a second or successive ha8 beas corpus application under section 2254 that was not

9 presented in a prior application shall be dismissed un10 less—

11 ‘‘(A) the applicant shows that the claim relies

12 on a new rule of constitutional law, made retroactive

13 by the Supreme Court, that was previously unavail14 able; or

15 ‘‘(B)(i) the factual predicate for the claim could

16 not have been discovered previously through the ex17 ercise of due diligence; and

18 ‘‘(ii) the facts underlying the claim, if proven

19 and viewed in light of the evidence as a whole, would

20 be sufficient to establish by clear and convincing evi21 dence that, but for constitutional error, no reason22 able factfinder would have found the applicant guilty

23 of the underlying offense.

24 ‘‘(3)(A) Before a second or successive application per25 mitted by this section is filed in the district court, the ap-
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1 plicant shall move in the appropriate court of appeals for

2 an order authorizing the district court to consider the ap3 plication.

4 ‘‘(B) A motion in the court of appeals for an order

5 authorizing the district court to consider a second or suc6 cessive application shall be determined by a three-judge

7 panel of the court of appeals.

8 ‘‘(C) The court of appeals may authorize the filing

9 of a second or successive application only if it determines

10 that the application makes a prima facie showing that the

11 application satisfies the requirements of this subsection.

12 ‘‘(D) The court of appeals shall grant or deny the

13 authorization to file a second or successive application not

14 later than 30 days after the filing of the motion.

15 ‘‘(E) The grant or denial of an authorization by a

16 court of appeals to file a second or success application

17 shall not be appealable and shall not be the subject of a

18 petition for rehearing or for a writ of certiorari.

19 ‘‘(4) A district court shall dismiss any claim pre20 sented in a second or successive application that the court

21 of appeals has authorized to be filed unless the applicant

22 shows that the claim satisfies the requirements of this sec23 tion.’’.
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1 SEC. 8. DEATH PENALTY LITIGATION PROCEDURES.

2 (a) ADDITION OF CHAPTER TO TITLE 28, UNITED

3 STATES CODE.—Title 28, United States Code, is amended

4 by inserting after chapter 153 the following new chapter:

5 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

6 PROCEDURES IN CAPITAL CASES

‘‘Sec.

‘‘2261. Prisoners in State custody subject to capital sentence; appointment of

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

appointment.

‘‘2262. Mandatory stay of execution; duration; limits on stays of execution; second or abusive petitions.

‘‘2263. Filing of habeas corpus application; time requirements; tolling rules.

‘‘2264. Scope of Federal review; district court adjudications.

‘‘2265. Application to State unitary review procedure.

‘‘2266. Limitation periods for determining applications and motions.

7 ‘‘§ 2261. Prisoners in State custody subject to capital

8 sentence; appointment of counsel; re9 quirement of rule of court or statute; pro10 cedures for appointment

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

12 section 2254 brought by prisoners in State custody who

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

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

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

16 by statute, rule of its court of last resort, or by another

17 agency authorized by State law, a mechanism for the ap18 pointment, compensation, and payment of reasonable liti19 gation expenses of competent counsel in State post-convic20 tion proceedings brought by indigent prisoners whose cap-
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1 ital convictions and sentences have been upheld on direct

2 appeal to the court of last resort in the State or have oth3 erwise become final for State law purposes. The rule of

4 court or statute must provide standards of competency for

5 the appointment of such counsel.

6 ‘‘(c) Any mechanism for the appointment, compensa7 tion, and reimbursement of counsel as provided in sub8 section (b) must offer counsel to all State prisoners under

9 capital sentence and must provide for the entry of an

10 order by a court of record—

11 ‘‘(1) appointing one or more counsel to rep12 resent the prisoner upon a finding that the prisoner

13 is indigent and accepted the offer or is unable com14 petently to decide whether to accept or reject the

15 offer;

16 ‘‘(2) finding, after a hearing if necessary, that

17 the prisoner rejected the offer of counsel and made

18 the decision with an understanding of its legal con19 sequences; or

20 ‘‘(3) denying the appointment of counsel upon

21 a finding that the prisoner is not indigent.

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

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

24 sentence shall have previously represented the prisoner at

25 trial or on direct appeal in the case for which the appoint-
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1 ment is made unless the prisoner and counsel expressly

2 request continued representation.

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

4 during State or Federal post-conviction proceedings in a

5 capital case shall not be a ground for relief in a proceeding

6 arising under section 2254. This limitation shall not pre7 clude the appointment of different counsel, on the court’s

8 own motion or at the request of the prisoner, at any phase

9 of State or Federal post-conviction proceedings on the

10 basis of the ineffectiveness or incompetence of counsel in

11 such proceedings.

12 ‘‘§ 2262. Mandatory stay of execution; duration; limits

13 on stays of execution; successive peti14 tions

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

16 of record of an order under section 2261(c), a warrant

17 or order setting an execution date for a State prisoner

18 shall be stayed upon application to any court that would

19 have jurisdiction over any proceedings filed under section

20 2254. The application shall recite that the State has in21 voked the post-conviction review procedures of this chapter

22 and that the scheduled execution is subject to stay.

23 ‘‘(b) A stay of execution granted pursuant to sub24 section (a) shall expire if—
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1 ‘‘(1) a State prisoner fails to file a habeas cor2 pus application under section 2254 within the time

3 required in section 2263;

4 ‘‘(2) before a court of competent jurisdiction, in

5 the presence of counsel, unless the prisoner has com6 petently and knowingly waived such counsel, and

7 after having been advised of the consequences, a

8 State prisoner under capital sentence waives the

9 right to pursue habeas corpus review under section

10 2254; or

11 ‘‘(3) a State prisoner files a habeas corpus peti12 tion under section 2254 within the time required by

13 section 2263 and fails to make a substantial showing

14 of the denial of a Federal right or is denied relief

15 in the district court or at any subsequent stage of

16 review.

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

18 occurred, no Federal court thereafter shall have the au19 thority to enter a stay of execution in the case, unless the

20 court of appeals approves the filing of a second or succes21 sive application under section 2244(b).

22 ‘‘§ 2263. Filing of habeas corpus application; time re23 quirements; tolling rules

24 ‘‘(a) Any application under this chapter for habeas

25 corpus relief under section 2254 must be filed in the ap-
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1 propriate district court not later than 180 days after final

2 State court affirmance of the conviction and sentence on

3 direct review or the expiration of the time for seeking such

4 review.

5 ‘‘(b) The time requirements established by subsection

6 (a) shall be tolled—

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

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

9 disposition of the petition if a State prisoner files

10 the petition to secure review by the Supreme Court

11 of the affirmance of a capital sentence on direct re12 view by the court of last resort of the State or other

13 final State court decision on direct review;

14 ‘‘(2) from the date on which the first petition

15 for post-conviction review or other collateral relief is

16 filed until the final State court disposition of such

17 petition; and

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

19 30 days, if—

20 ‘‘(A) a motion for an extension of time is

21 filed in the Federal district court that would

22 have jurisdiction over the case upon the filing

23 of a habeas corpus application under section

24 2254; and
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1 ‘‘(B) a showing of good cause is made for

2 the failure to file the habeas corpus application

3 within the time period established by this sec4 tion.

5 ‘‘§ 2264. Scope of Federal review; district court adju6 dications

7 ‘‘(a) Whenever a State prisoner under capital sen8 tence files a petition for habeas corpus relief to which this

9 chapter applies, the district court shall only consider a

10 claim or claims that have been raised and decided on the

11 merits in the State courts, unless the failure to raise the

12 claim properly is—

13 ‘‘(1) the result of State action in violation of

14 the Constitution or laws of the United States;

15 ‘‘(2) the result of the Supreme Court recogni16 tion of a new Federal right that is made retro17 actively applicable; or

18 ‘‘(3) based on a factual predicate that could not

19 have been discovered through the exercise of due

20 diligence in time to present the claim for State or

21 Federal post-conviction review.

22 ‘‘(b) Following review subject to subsections (a), (d),

23 and (e) of section 2254, the court shall rule on the claims

24 properly before it.
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1 ‘‘§ 2265. Application to State unitary review proce2 dure

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

4 procedure means a State procedure that authorizes a per5 son under sentence of death to raise, in the course of di6 rect review of the judgment, such claims as could be raised

7 on collateral attack. This chapter shall apply, as provided

8 in this section, in relation to a State unitary review proce9 dure if the State establishes by rule of its court of last

10 resort or by statute a mechanism for the appointment,

11 compensation, and payment of reasonable litigation ex12 penses of competent counsel in the unitary review proceed13 ings, including expenses relating to the litigation of collat14 eral claims in the proceedings. The rule of court or statute

15 must provide standards of competency for the appoint16 ment of such counsel.

17 ‘‘(b) To qualify under this section, a unitary review

18 procedure must include an offer of counsel following trial

19 for the purpose of representation on unitary review, and

20 entry of an order, as provided in section 2261(c), concern21 ing appointment of counsel or waiver or denial of appoint22 ment of counsel for that purpose. No counsel appointed

23 to represent the prisoner in the unitary review proceedings

24 shall have previously represented the prisoner at trial in

25 the case for which the appointment is made unless the
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1 prisoner and counsel expressly request continued represen2 tation.

3 ‘‘(c) Sections 2262, 2263, 2264, and 2266 shall apply

4 in relation to cases involving a sentence of death from any

5 State having a unitary review procedure that qualifies

6 under this section. References to State ‘post-conviction re7 view’ and ‘direct review’ in such sections shall be under8 stood as referring to unitary review under the State proce9 dure. The reference in section 2262(a) to ‘an order under

10 section 2261(c)’ shall be understood as referring to the

11 post-trial order under subsection (b) concerning represen12 tation in the unitary review proceedings, but if a tran13 script of the trial proceedings is unavailable at the time

14 of the filing of such an order in the appropriate State

15 court, then the start of the 180-day limitation period

16 under section 2263 shall be deferred until a transcript is

17 made available to the prisoner or counsel of the prisoner.

18 ‘‘§ 2266. Limitation periods for determining applica19 tions and motions

20 ‘‘(a) The adjudication of any application under sec21 tion 2254 that is subject to this chapter, and the adjudica22 tion of any motion under section 2255 by a person under

23 sentence of death, shall be given priority by the district

24 court and by the court of appeals over all noncapital mat25 ters.
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1 ‘‘(b)(1)(A) A district court shall render a final deter2 mination and enter a final judgment on any application

3 for a writ of habeas corpus brought under this chapter

4 in a capital case not later than 180 days after the date

5 on which the application is filed.

6 ‘‘(B) A district court shall afford the parties at least

7 120 days in which to complete all actions, including the

8 preparation of all pleadings and briefs, and if necessary,

9 a hearing, prior to the submission of the case for decision.

10 ‘‘(C)(i) A district court may delay for not more than

11 one additional 30-day period beyond the period specified

12 in subparagraph (A), the rendering of a determination of

13 an application for a writ of habeas corpus if the court is14 sues a written order making a finding, and stating the

15 reasons for the finding, that the ends of justice that would

16 be served by allowing the delay outweigh the best interests

17 of the public and the applicant in a speedy disposition of

18 the application.

19 ‘‘(ii) The factors, among others, that a court shall

20 consider in determining whether a delay in the disposition

21 of an application is warranted are as follows:

22 ‘‘(I) Whether the failure to allow the delay

23 would be likely to result in a miscarriage of justice.

24 ‘‘(II) Whether the case is so unusual or so com25 plex, due to the number of defendants, the nature of
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1 the prosecution, or the existence of novel questions

2 of fact or law, that it is unreasonable to expect ade3 quate briefing within the time limitations established

4 by subparagraph (A).

5 ‘‘(III) Whether the failure to allow a delay in

6 a case, that, taken as a whole, is not so unusual or

7 so complex as described in subclause (II), but would

8 otherwise deny the applicant reasonable time to ob9 tain counsel, would unreasonably deny the applicant

10 or the government continuity of counsel, or would

11 deny counsel for the applicant or the government the

12 reasonable time necessary for effective preparation,

13 taking into account the exercise of due diligence.

14 ‘‘(iii) No delay in disposition shall be permissible be15 cause of general congestion of the court’s calendar.

16 ‘‘(iv) The court shall transmit a copy of any order

17 issued under clause (i) to the Director of the Administra18 tive Office of the United States Courts for inclusion in

19 the report under paragraph (5).

20 ‘‘(2) The time limitations under paragraph (1) shall

21 apply to—

22 ‘‘(A) an initial application for a writ of habeas

23 corpus;

24 ‘‘(B) any second or successive application for a

25 writ of habeas corpus; and
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1 ‘‘(C) any redetermination of an application for

2 a writ of habeas corpus following a remand by the

3 court of appeals or the Supreme Court for further

4 proceedings, in which case the limitation period shall

5 run from the date the remand is ordered.

6 ‘‘(3)(A) The time limitations under this section shall

7 not be construed to entitle an applicant to a stay of execu8 tion, to which the applicant would otherwise not be enti9 tled, for the purpose of litigating any application or ap10 peal.

11 ‘‘(B) No amendment to an application for a writ of

12 habeas corpus under this chapter shall be permitted after

13 the filing of the answer to the application, except on the

14 grounds specified in section 2244(b).

15 ‘‘(4)(A) The failure of a court to meet or comply with

16 a time limitation under this section shall not be a ground

17 for granting relief from a judgment of conviction or sen18 tence.

19 ‘‘(B) The State may enforce a time limitation under

20 this section by petitioning for a writ of mandamus to the

21 court of appeals. The court of appeals shall act on the

22 petition for a writ or mandamus not later than 30 days

23 after the filing of the petition.

24 ‘‘(5)(A) The Administrative Office of United States

25 Courts shall submit to Congress an annual report on the
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1 compliance by the district courts with the time limitations

2 under this section.

3 ‘‘(B) The report described in subparagraph (A) shall

4 include copies of the orders submitted by the district

5 courts under paragraph (1)(B)(iv).

6 ‘‘(c)(1)(A) A court of appeals shall hear and render

7 a final determination of any appeal of an order granting

8 or denying, in whole or in part, an application brought

9 under this chapter in a capital case not later than 120

10 days after the date on which the reply brief is filed, or

11 if no reply brief is filed, not later than 120 days after

12 the date on which the answering brief is filed.

13 ‘‘(B)(i) A court of appeals shall decide whether to

14 grant a petition for rehearing or other request for rehear15 ing en banc not later than 30 days after the date on which

16 the petition for rehearing is filed unless a responsive

17 pleading is required, in which case the court shall decide

18 whether to grant the petition not later than 30 days after

19 the date on which the responsive pleading is filed.

20 ‘‘(ii) If a petition for rehearing or rehearing en banc

21 is granted, the court of appeals shall hear and render a

22 final determination of the appeal not later than 120 days

23 after the date on which the order granting rehearing or

24 rehearing en banc is entered.
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1 ‘‘(2) The time limitations under paragraph (1) shall

2 apply to—

3 ‘‘(A) an initial application for a writ of habeas

4 corpus;

5 ‘‘(B) any second or successive application for a

6 writ of habeas corpus; and

7 ‘‘(C) any redetermination of an application for

8 a writ of habeas corpus or related appeal following

9 a remand by the court of appeals en banc or the Su10 preme Court for further proceedings, in which case

11 the limitation period shall run from the date the re12 mand is ordered.

13 ‘‘(3) The time limitations under this section shall not

14 be construed to entitle an applicant to a stay of execution,

15 to which the applicant would otherwise not be entitled, for

16 the purpose of litigating any application or appeal.

17 ‘‘(4)(A) The failure of a court to meet or comply with

18 a time limitation under this section shall not be a ground

19 for granting relief from a judgment of conviction or sen20 tence.

21 ‘‘(B) The State may enforce a time limitation under

22 this section by applying for a writ of mandamus to the

23 Supreme Court.

24 ‘‘(5) The Administrative Office of United States

25 Courts shall submit to Congress an annual report on the
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1 compliance by the courts of appeals with the time limita2 tions under this section.’’.

3 (b) TECHNICAL AMENDMENT.—The part analysis for

4 part IV of title 28, United States Code, is amended by

5 adding after the item relating to chapter 153 the following

6 new item:

‘‘154. Special habeas corpus procedures in capital

cases ............................................................................ 2261.’’.

7 SEC. 9. TECHNICAL AMENDMENT.

8 Section 408(q) of the Controlled Substances Act (21

9 U.S.C. 848(q)) is amended—

10 (1) in paragraph (4)(A), by striking ‘‘shall’’ and

11 inserting ‘‘may’’;

12 (2) in paragraph (4)(B), by striking ‘‘shall’’

13 and inserting ‘‘may’’; and

14 (3) by amending paragraph (9) to read as fol15 lows:

16 ‘‘(9) Upon a finding that investigative, expert, or

17 other services are reasonably necessary for the representa18 tion of the defendant, whether in connection with issues

19 relating to guilt or the sentence, the court may authorize

20 the defendant’s attorneys to obtain such services on behalf

21 of the defendant and, if so authorized, shall order the pay22 ment of fees and expenses therefor under paragraph (10).

23 No ex parte proceeding, communication, or request may

24 be considered pursuant to this section unless a proper
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1 showing is made concerning the need for confidentiality.

2 Any such proceeding, communication, or request shall be

3 transcribed and made a part of the record available for

4 appellate review.’’.

5 SEC. 10. SEVERABILITY.

6 If any provision of this Act, an amendment made by

7 this Act, or the application of such provision or amend8 ment to any person or circumstance is held to be unconsti9 tutional, the remainder of this Act, the amendments made

10 by this Act, and the application of the provisions of such

11 to any person or circumstance shall not be affected there12 by.

Æ

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