Calendar No. 281

103D CONGRESS

1ST SESSION S. 1657

A BILL

To reform habeas corpus procedures.

NOVEMBER 10 (legislative day, NOVEMBER 2), 1993

Ordered to be placed on the calendar
II

Calendar No. 281

103D CONGRESS

1ST SESSION S. 1657

IN THE SENATE OF THE UNITED STATES

NOVEMBER 10 (legislative day, NOVEMBER 2), 1993

Mr. DOLE (for Mr. SPECTER) introduced the following bill; which was read

twice and ordered to be placed on the calendar

A BILL

To reform habeas corpus procedures.

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

3 SEC. 301. SHORT TITLE.

4 This title may be cited as ‘‘A bill to enforce the four5 teenth amendment and to reform habeas corpus.’’.

6 SEC. 302. FILING DEADLINES.

7 (a) IN GENERAL.—Section 2242 of title 28, United

8 States Code, is amended—

9 (1) by amending the heading to read as follows:
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1 ‘‘§ 2242. Filing of habeas corpus petition; time re2 quirements; tolling rules’’;

3 (2) by inserting ‘‘(a)(1)’’ before the first para4 graph, ‘‘(2)’’ before the second paragraph, ‘‘(3)’’ be5 fore the third paragraph, and ‘‘(4)’’ before the

6 fourth paragraph;

7 (3) by amending the third paragraph, as des8 ignated by paragraph (3), to read as follows:

9 ‘‘(3) Leave to amend or supplement the petition shall

10 be freely given, as provided in the rules of procedure appli11 cable to civil actions.’’; and

12 (4) by adding at the end the following new sub13 sections:

14 ‘‘(b) An application for habeas corpus relief under

15 section 2254 shall be filed in the appropriate district court

16 not later than 180 days after—

17 ‘‘(1) the last day for filing a petition for writ

18 of certiorari in the United States Supreme Court on

19 direct appeal or unitary review of the conviction and

20 sentence, if such a petition has not been filed within

21 the time limits established by law;

22 ‘‘(2) the date of the denial of a writ of certio23 rari, if a petition for a writ of certiorari to the high24 est court of the State on direct appeal or unitary re25 view of the conviction and sentence is filed, within
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1 the time limits established by law, in the United

2 States Supreme Court; or

3 ‘‘(3) the date of the issuance of the mandate of

4 the United States Supreme Court, if on a petition

5 for a writ of certiorari the Supreme Court grants

6 the writ and disposes of the case in a manner that

7 leaves the sentence undisturbed.

8 ‘‘(2) The time requirements established by subsection

9 (b) shall not apply unless the State has provided notice

10 to a petitioner under sentence of death of the time require11 ments established by this section. Such notice shall be pro12 vided upon the final disposition of the initial petition for

13 State post-conviction review.

14 ‘‘(3) In a case in which a sentence of death has been

15 imposed, the time requirements established by subsection

16 (b) shall be tolled—

17 ‘‘(A) during any period in which the State has

18 failed to appoint counsel for State post-conviction re19 view as required in section 2258;

20 ‘‘(B) during any period in which the petitioner

21 is incompetent; and

22 ‘‘(C) during an additional period, not to exceed

23 60 days, if the petitioner makes a showing of good

24 cause.
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1 ‘‘(d)(1) Notwithstanding the filing deadline imposed

2 by subsection (b), if a petitioner under a sentence other

3 than death has filed—

4 ‘‘(A) a petition for post-conviction review in

5 State court; or

6 ‘‘(B) a request for counsel for post-conviction

7 review,

8 before the expiration of the period described in subsection

9 (b), the petitioner shall have 180 days to file a petition

10 under this chapter upon completion of the State court re11 view.

12 ‘‘(2) The time requirements established by subsection

13 (b) shall not apply in a case in which a sentence other

14 than death has been imposed unless—

15 ‘‘(A) the State has provided notice to the peti16 tioner of the time requirements established by this

17 section and of the availability of counsel as described

18 in subparagraph (B); such notice shall be provided

19 orally at the time of sentencing and in writing at the

20 time the petitioner’s conviction becomes final, except

21 that in a case in which the petitioner’s conviction be22 comes final within 30 days of sentencing, the State

23 may provide both the oral and the written notice at

24 sentencing; in all cases, the written notice to peti25 tioner shall include easily understood instructions for
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1 filing a request for counsel for State post-conviction

2 review; and

3 ‘‘(B)(i) the State provides counsel to the peti4 tioner upon the filing of a request for counsel for

5 State post-conviction review; or

6 ‘‘(ii) the State provides counsel to the peti7 tioner, if a request for counsel for State post-convic8 tion review is not filed, upon the filing of a petition

9 for post-conviction review.

10 ‘‘(3) The time requirements established by subsection

11 (b) shall be tolled in a case in which a sentence other than

12 death has been imposed—

13 ‘‘(A) during any period in which the petitioner

14 is incompetent; and

15 ‘‘(B) during an additional period, not to exceed

16 60 days, if the petitioner makes a showing of good

17 cause.

18 ‘‘(e) An application that is not filed within the time

19 requirements established by subsection (b) shall be gov20 erned by section 2244(b).’’.

21 (b) TECHNICAL AMENDMENT.—The chapter analysis

22 for chapter 153 of title 28, United States Code is amended

23 by amending the item relating to section 2242 to read as

24 follows:

‘‘2242. Filing of habeas corpus petition; time requirements; tolling rules.’’.
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1 SEC. 303. STAYS OF EXECUTION IN CAPITAL CASES.

2 Section 2251 of title 28, United States Code, is

3 amended—

4 (1) by inserting ‘‘(a)(1)’’ before the first para5 graph and ‘‘(2)’’ before the second paragraph; and

6 (2) by adding at the end the following new sub7 sections:

8 ‘‘(b) In the case of a person under sentence of death,

9 a warrant or order setting an execution shall be stayed

10 upon application to any court that would have jurisdiction

11 over a habeas corpus petition under this chapter. The stay

12 shall be contingent upon the exercise of reasonable dili13 gence by the applicant in pursuing relief with respect to

14 the sentence and shall expire if—

15 ‘‘(1) the applicant fails to file for relief under

16 this chapter within the time requirements estab17 lished by section 2242;

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

19 of appeals review under section 2254, the application

20 is denied and—

21 ‘‘(A) the time for filing a petition for a

22 writ of certiorari expires before a petition is

23 filed;

24 ‘‘(B) a timely petition for a writ of certio25 rari is filed and the Supreme Court denies the

26 petition; or
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1 ‘‘(C) a timely petition for certiorari is filed

2 and, upon consideration of the case, the Su3 preme Court disposes of it in a manner that

4 leaves the capital sentence undisturbed; or

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

6 the presence of counsel, and after being advised of

7 the consequences of the decision, the applicant com8 petently and knowingly waives the right to pursue

9 habeas corpus relief under this chapter.

10 ‘‘(c) If any 1 of the conditions in subsection (b) has

11 occurred, no Federal court thereafter shall have the au12 thority to enter a stay of execution unless the applicant

13 has filed a habeas corpus petition that satisfies, on its

14 face, section 2244(b) or 2256. A stay granted pursuant

15 to this subsection shall expire if, after the grant of the

16 stay, 1 of the conditions specified in subsection (b) (2)

17 or (3) occurs.’’.

18 SEC. 304. APPLICATION OF NEW RULES; STANDARD OF RE19 VIEW.

20 (a) RETROACTIVE APPLICATION OF NEW RULES.—

21 (1) IN GENERAL.—Chapter 153 of title 28,

22 United States Code, as amended by section 306(a),

23 is amended by adding at the end the following new

24 section:
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1 ‘‘§ 2257. Law applicable

2 ‘‘In cases subject to this chapter, all claims shall be

3 governed by the law as it was when the petitioner’s convic4 tion became final. A court considering a claim under this

5 chapter shall consider intervening decisions by the Su6 preme Court of the United States which establish fun7 damental constitutional rights.’’.

8 (2) TECHNICAL AMENDMENT.—The chapter

9 analysis for chapter 153 of title 28, United States

10 Code, as amended by section 306(b), is amended by

11 adding at the end the following new item:

‘‘2257. Law applicable.’’.

12 (b) STANDARD OF REVIEW.—Section 2254(a) of title

13 28, United States Code, is amended by adding at the end

14 the following: ‘‘Except as to Fourth Amendment claims

15 controlled by Stone v. Powell, 428 U.S. 465 (1976), the

16 Federal courts, in reviewing an application under this sec17 tion, shall review de novo the rulings of a State court on

18 matters of Federal law, including the application of Fed19 eral law to facts, regardless of whether the opportunity

20 for a full and fair hearing on such Federal questions has

21 been provided in the State court. In the case of a violation

22 that can be harmless, the State shall bear the burden of

23 proving harmlessness.’’.
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1 SEC. 305. LIMITS ON SUCCESSIVE PETITIONS.

2 Section 2244(b) of title 28, United States Code, is

3 amended to read as follows:

4 ‘‘(b)(1) A claim presented in a habeas corpus petition

5 that was not timely presented in a prior petition shall be

6 dismissed unless—

7 ‘‘(A) the petitioner shows that—

8 ‘‘(i) the failure to raise the claim pre9 viously was the result of interference by State

10 officials with the presentation of the claim, in

11 violation of the Constitution or laws of the

12 United States;

13 ‘‘(ii) the claim relies on a new rule that is

14 applicable under section 2257 and was pre15 viously unavailable; or

16 ‘‘(iii) the factual predicate for the claim

17 could not have been discovered previously

18 through the exercise of reasonable diligence;

19 and

20 ‘‘(B) the facts underlying the claim, if proven

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

22 be sufficient to—

23 ‘‘(i) undermine the court’s confidence in

24 the factfinder’s determination of the applicant’s

25 guilt of the offense or offenses for which the

26 sentence was imposed; or
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1 ‘‘(ii) demonstrate that no reasonable sen2 tencing authority would have found an aggra3 vating circumstance or other condition of eligi4 bility for a capital or noncapital sentence, or

5 otherwise would have imposed a sentence of

6 death.

7 ‘‘(2)(A) Before a successive petition is filed in the dis8 trict court, the petitioner must move in the appropriate

9 court of appeals for an order authorizing the district court

10 to consider the petition.

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

12 authorizing the district court to consider a successive peti13 tion shall be determined by more than one judge of the

14 court of appeals.

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

16 of a successive petition only if it determines that the peti17 tioner has demonstrated that probable cause exists to be18 lieve that the petition satisfies the requirements of this

19 section.’’.

20 SEC. 306. NEW EVIDENCE.

21 (a) IN GENERAL.—Chapter 153 of title 28, United

22 States Code, as amended by section 304(a)(1), is amended

23 by adding at the end the following new section:
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1 ‘‘§ 2256. Capital cases; new evidence

2 ‘‘For purposes of this chapter, a claim arising from

3 a violation of the Constitution, laws, or treaties of the

4 United States shall include a claim by a person under sen5 tence of death that is based on factual allegations that,

6 if proven and viewed in light of the evidence as a whole,

7 would be sufficient to demonstrate that no reasonable

8 factfinder would have found the petitioner guilty of the

9 offense or that no reasonable sentencing authority would

10 have found an aggravating circumstance or other condi11 tion of eligibility for the sentence. Such a claim shall be

12 dismissed if the facts supporting the claim were actually

13 known to the petitioner during a prior stage of the litiga14 tion in which the claim was not raised. Notwithstanding

15 any other provision of this chapter, the claim shall not

16 be subject to section 2244(b) or the time requirements es17 tablished by section 2242. In all other respects, the claim

18 shall be subject to the rules applicable to claims under this

19 chapter.’’.

20 (b) TECHNICAL AMENDMENT.—The chapter analysis

21 for chapter 153 of title 28, United States Code, as amend22 ed by section 304(a)(2), is amended by adding at the end

23 the following new item:

‘‘2258. Capital cases; new evidence.’’.
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1 SEC. 307. CERTIFICATES OF PROBABLE CAUSE.

2 The third paragraph of section 2253 of title 28, Unit3 ed States Code, is amended by adding at the end the fol4 lowing: ‘‘However, an applicant under sentence of death

5 shall have a right of appeal without a certificate of prob6 able cause, except after denial of a habeas corpus petition

7 filed under section 2244(b).’’.

8 SEC. 308. TIME REQUIREMENTS FOR CONSIDERATION BY

9 DISTRICT COURTS OF HABEAS CORPUS PETI10 TIONS IN CAPITAL CASES.

11 (a) IN GENERAL.—Chapter 153 of title 28, United

12 States Code, as amended by section 306(a), is amended

13 by adding at the end the following new section:

14 ‘‘§ 2259. Time limitations for consideration by the dis15 trict courts habeas corpus petitions in

16 capital cases

17 ‘‘(a) IN GENERAL.—

18 ‘‘(1) FINAL DETERMINATION WITHIN 180

19 DAYS.—A district court shall render a final deter20 mination of any petition for a writ of habeas corpus

21 brought under this chapter in a capital case within

22 180 days after the date on which the petition is

23 filed.

24 ‘‘(2) DELAY.—(A) A district court may delay

25 the rendering of a determination of a petition be26 yond 180 days if the court issues a written order
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1 making finding, and stating the reasons for the find2 ing, that the ends of justice that would be served by

3 allowing the delay outweigh the best interests of

4 public and the petitioner in a speedy disposition of

5 the petition.

6 ‘‘(B) The factors, among others, that a court

7 shall consider in determining whether a delay in dis8 position of a petition is permissible are as follows:

9 ‘‘(i) Whether the failure to allow the delay

10 would be likely to result in a miscarriage of jus11 tice.

12 ‘‘(ii) Whether the case is so unusual or so

13 complex, due to the number of defendants, the

14 nature of the prosecution, or the existence of

15 novel questions of fact or law, that it is unrea16 sonable to expect adequate briefing within the

17 time limit established by paragraph (1).

18 ‘‘(iii) Whether the failure to allow a delay

19 in a case that, taken as a whole, is not so un20 usual or so complex as described in clause (ii),

21 would deny the petitioner reasonable time to ob22 tain counsel, would unreasonably deny the peti23 tioner or the government continuity of counsel,

24 or would deny counsel for the petitioner or the

25 attorney for the government the reasonable
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1 time necessary for effective preparation, taking

2 into account the exercise of due diligence.

3 ‘‘(C) No delay in disposition shall be permis4 sible because of general congestion of the court’s cal5 endar or lack of diligent preparation on the part of

6 the attorney for the government.

7 ‘‘(D) The court shall transmit a copy of any

8 order issued under subparagraph (A) to the Director

9 of the Administrative Office of the United States

10 Courts for inclusion in the report under subsection

11 (e).

12 ‘‘(b) APPLICATION.—The time limitations under sub13 section (a) shall apply to—

14 ‘‘(1) an initial petition for a writ of habeas cor15 pus;

16 ‘‘(2) any second or successive petition for a writ

17 of habeas corpus; and

18 ‘‘(3) any re-determination of a petition for a

19 writ of habeas corpus following a remand by the

20 court of appeals or the Supreme Court for further

21 proceedings, in which case the limitation period shall

22 run from the date of the remand.

23 ‘‘(c) RULE OF CONSTRUCTION.—The time limitations

24 under this section shall not be construed to entitle a peti25 tioner to a stay of execution, to which the petitioner would
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1 otherwise not be entitled, for the purpose of litigating any

2 petition or appeal.

3 ‘‘(d) FAILURE TO RENDER TIMELY DETERMINA4 TION.—

5 ‘‘(1) NO GROUND FOR RELIEF.—The failure of

6 a court to meet or comply with a time limitation

7 under this section shall not be a ground for granting

8 relief from a judgment of conviction or sentence.

9 ‘‘(2) ENFORCEMENT.—The government may

10 enforce a time limitation under this section by apply11 ing for a writ of mandamus to the court of appeals.

12 ‘‘(e) REPORT.—

13 ‘‘(1) IN GENERAL.—The Administrative Office

14 of United States Courts shall submit to Congress an

15 annual report on the compliance by the district

16 courts with the time limitations under this section.

17 ‘‘(2) CONTENTS.—The report described in

18 paragraph (1) shall include copies of the orders sub19 mitted by the district courts under subsection

20 (a)(2)(D).’’.

21 (b) TECHNICAL AMENDMENT.—The chapter analysis

22 for chapter 153 of title 28, United States Code, as amend23 ed by section 308(b), is amended by adding at the end

24 the following new item:

‘‘2259. Time limitations for consideration by the district courts of petitions for

habeas corpus in capital cases.’’.
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1 SEC. 309. TIME REQUIREMENTS FOR CONSIDERATION BY

2 COURTS OF APPEALS OF APPEALS OF DIS3 TRICT COURT DETERMINATIONS OF HABEAS

4 CORPUS PETITIONS IN CAPITAL CASES.

5 (a) IN GENERAL.—Chapter 153 of title 28, United

6 States Code, as amended by section 306(a), is amended

7 by adding at the end the following new section:

8 ‘‘§ 2260. Time limitations for consideration by courts

9 of appeals of district court determina10 tions of habeas corpus petitions in cap11 ital cases

12 ‘‘(a) IN GENERAL.—

13 ‘‘(1) FINAL DETERMINATION WITHIN 120

14 DAYS.—A court of appeals shall hear and render a

15 final determination of any appeal of an order grant16 ing or denying, in whole or in part, a petition

17 brought under this chapter in a capital case within

18 120 days after the date on which the notice of ap19 peal is filed.

20 ‘‘(2) HEARING EN BANC.—(A) A court of ap21 peals shall decide whether to grant a petition for re22 hearing en banc within 20 days after the date on

23 which the petition for rehearing is filed unless a re24 sponsive pleading is required, in which case the

25 court shall decide whether to grant the petition with-
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1 in 20 days after the date on which the responsive

2 pleading is filed.

3 ‘‘(B) If a petition for rehearing is granted, the

4 court of appeals shall hear and render a final deter5 mination of the appeal within 120 days after the

6 date on which the order granting rehearing is en7 tered.

8 ‘‘(b) APPLICATION.—The time limitations under sub9 section (a) shall apply to—

10 ‘‘(1) an initial petition for a writ of habeas cor11 pus;

12 ‘‘(2) any second or successive petition for a writ

13 of habeas corpus; and

14 ‘‘(3) any re-determination of a petition for a

15 writ of habeas corpus or related appeal following a

16 remand by the court of appeals or the Supreme

17 Court for further proceedings, in which case the lim18 itation period shall run from the date of the remand.

19 ‘‘(c) RULE OF CONSTRUCTION.—The time limitations

20 under this section shall not be construed to entitle a peti21 tioner to a stay of execution, to which the petitioner would

22 otherwise not be entitled, for the purpose of litigating any

23 petition or appeal.

24 ‘‘(d) FAILURE TO RENDER TIMELY DETERMINA25 TION.—
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1 ‘‘(1) NO GROUND FOR RELIEF.—The failure of

2 a court to meet or comply with a time limitation

3 under this section shall not be a ground for granting

4 relief from a judgment of conviction or sentence.

5 ‘‘(2) ENFORCEMENT.—The government may

6 enforce a time limitation under this section by apply7 ing for a writ of mandamus to the Supreme Court.

8 ‘‘(e) REPORT.—The Administrative Office of United

9 States Courts shall submit to Congress an annual report

10 on the compliance by the courts of appeals with the time

11 limitations under this section.’’.

12 (b) TECHNICAL AMENDMENT.—The chapter analysis

13 for chapter 153 of title 28, United States Code, as amend14 ed by section 306(b), is amended by adding at the end

15 the following new item:

‘‘2260. Time limitations for consideration by courts of appeal of appeals of district court determinations of habeas corpus petitions in capital

cases.’’.

16 SEC. 310. ABOLITION OF EXHAUSTION OF COLLATERAL

17 REMEDIES REQUIREMENT IN CAPITAL

18 CASES.

19 Section 2254(b) of title 28, United States Code is

20 amended to read as follows:

21 ‘‘(b)(1) Except in a capital case, an application for

22 a writ of habeas corpus in behalf of a person in custody

23 pursuant to the judgment of a State court shall not be

24 granted unless it appears that the applicant has exhausted
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1 the remedies available in the courts of the State (including

2 opportunities to petition the Supreme Court for certiorari

3 review on direct appeal and any available collateral review

4 in the State courts), or that there is either an absence

5 of available State corrective process or the existence of cir6 cumstances rendering such process ineffective to protect

7 the rights of the prisoner.

8 ‘‘(2) In a capital case, an application for a writ of

9 habeas corpus in behalf of a person in custody pursuant

10 to the judgment of a State court shall not be granted un11 less it appears that the applicant has exhausted the rem12 edies available in the courts of the State (including oppor13 tunities to petition the Supreme Court for certiorari review

14 on direct appeal but not including any available collateral

15 review in the State courts), or that there is either an ab16 sence of available State corrective proceeds or the exist17 ence of circumstances rendering such process ineffective

18 to protect the rights of the prisoner.’’.

19 SEC. 311. PROVISION OF COUNSEL.

20 (a) IN GENERAL.—Chapter 153 of title 28, United

21 States Code, as amended by section 304(a)(1), is amended

22 by adding at the end the following new section:

23 ‘‘§ 2258. Counsel in capital cases; State court

24 ‘‘(a) FINDING AND DECLARATION.—The Congress

25 finds that inadequate representation in State capital
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1 trials, appeals and post-conviction proceedings increases

2 unacceptably the risk of constitutional and factual error.

3 The possibility of such errors puts into question the valid4 ity of individual convictions and the conformity of State

5 criminal justice systems with the commands of the Due

6 Process Clause of the Fourteenth Amendment. The Con7 gress therefore determines that the following requirements

8 are a necessary and appropriate means, pursuant to its

9 authority under section 5 of that Amendment, of enforcing

10 the Due Process Clause.

11 ‘‘(b) COUNSEL.—(1) A State in which a sentence of

12 death may be imposed under State law shall provide legal

13 services to—

14 ‘‘(A) indigents charged with offenses for which

15 capital punishment is sought;

16 ‘‘(B) indigents who have been sentenced to

17 death and who seek appellate, post-conviction, or

18 unitary review in State court; and

19 ‘‘(C) indigents who have been sentenced to

20 death and who seek certiorari review of State court

21 judgments in the United States Supreme Court.

22 ‘‘(2) This section shall not apply or form a basis for

23 relief to nonindigents.

24 ‘‘(c) COUNSEL CERTIFICATION AUTHORITY.—A

25 State in which a sentence of death may be imposed under
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1 State law shall, within 180 days after the date of enact2 ment of this subsection, establish a State counsel certifi3 cation authority, which shall be comprised of members of

4 the bar with substantial experience in, or commitment to,

5 the representation of criminal defendants in capital cases,

6 and shall be comprised of a balanced representation from

7 each segment of the State’s criminal defense bar, such as

8 a statewide defender organization, a capital case resource

9 center, local public defender’s offices and private attorneys

10 involved in criminal trial, appellate, post-conviction, or

11 unitary review practice. If a State fails to establish a coun12 sel certification authority within 180 days after the date

13 of enactment of this subsection, a private cause of action

14 may be brought in Federal district court to enforce this

15 subsection by any aggrieved party, including a defendant

16 eligible for appointed representation under this subsection

17 or a member of an organization eligible for representation

18 on the counsel certification authority. If the court finds

19 that the State has failed to establish a counsel certification

20 authority as required by this subsection, the court shall

21 grant appropriate injunctive and declaratory relief, except

22 that the court shall not grant relief that disturbs any

23 criminal conviction or sentence, obstructs the prosecution

24 of State criminal proceedings, or alters proceedings arising

25 under this chapter.
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1 ‘‘(d) DUTIES OF AUTHORITY; CERTIFICATION OF

2 COUNSEL.—The counsel certification authority shall—

3 ‘‘(1) establish and publish standards governing

4 qualifications of counsel, which shall include—

5 ‘‘(A) knowledge and understanding of per6 tinent legal authorities regarding issues in cap7 ital cases;

8 ‘‘(B) skills in the conduct of negotiations

9 and litigation in capital cases, the investigation

10 of capital cases and the psychiatric history and

11 current condition of capital clients, and the

12 preparation and writing of legal papers in cap13 ital cases;

14 ‘‘(C) the minimum qualifications required

15 by subsection (e); and

16 ‘‘(D) any additional qualifications relevant

17 to the representation of capital defendants;

18 ‘‘(2) establish application and certification pro19 cedures for attorneys who possess the qualifications

20 established pursuant to paragraph (1);

21 ‘‘(3) establish application and certification pro22 cedures for attorneys who do not possess all the

23 qualifications established pursuant to paragraph (1)

24 but who possess, in addition to the minimum quali25 fications required by subsection (e), additional re-
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1 sources (such as an affiliation with a publicly funded

2 defender organization) and experience that enable

3 them to provide quality legal representation com4 parable to that of an attorney possessing the quali5 fications established pursuant to paragraph (1);

6 ‘‘(4) establish application and certification pro7 cedures, to be used on a case by case basis, for at8 torneys who do not necessarily possess the minimum

9 qualifications required by subsection (e), but who

10 possess other extraordinary experience and resources

11 that enable them to provide quality legal representa12 tion comparable to that of an attorney possessing

13 the qualifications established pursuant to paragraph

14 (1);

15 ‘‘(5) publish a current roster of attorneys cer16 tified pursuant to paragraphs (2) and (3) to be ap17 pointed in capital cases;

18 ‘‘(6) establish and publish standards governing

19 the performance of counsel in capital cases, includ20 ing standards that proscribe abusive practices and

21 mandate sound practices in order to further the fair

22 and orderly administration of justice;

23 ‘‘(7) monitor the performance of attorneys cer24 tified pursuant to this subsection; and
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1 ‘‘(8) delete from the roster the name of any at2 torney who fails to meet the qualification or per3 formance standards established pursuant to this

4 subsection.

5 ‘‘(e) MINIMUM COUNSEL STANDARDS.—All counsel

6 certified pursuant to paragraph (2) or (3) of subsection

7 (d) or appointed pursuant to subsection (f) shall possess,

8 in addition to any qualifications required by State or local

9 law, the following minimum qualifications:

10 ‘‘(1) familiarity with the performance standards

11 established by the counsel certification authority;

12 ‘‘(2) familiarity with the appropriate court sys13 tem, including the procedural rules regarding timeli14 ness of filings and procedural default; and

15 ‘‘(3) in the case of counsel appointed for the

16 trial or sentencing stages, at least 2 of the qualifica17 tions listed in subparagraph (A) and 1 of the quali18 fications listed in subparagraph (B), or 1 of the al19 ternative qualifications listed in subparagraph (C):

20 ‘‘(A) QUALIFYING TRIAL EXPERIENCE

21 (MUST HAVE 2).—Prior experience within the

22 last 10 years as—

23 ‘‘(i) lead or sole counsel in 12 jury

24 trials, of which no fewer than 5 were crimi25 nal jury trials;
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1 ‘‘(ii) lead or sole counsel in 3 criminal

2 jury trials in which the charge was murder

3 or aggravated murder;

4 ‘‘(iii) co-counsel in 5 criminal jury

5 trials in which the charge was murder or

6 aggravated murder;

7 ‘‘(iv) lead or sole counsel in no fewer

8 than 5 criminal jury trials involving crimes

9 of violence against persons, punishable by

10 imprisonment of over 1 year,

11 which were tried to a verdict or to a deadlocked

12 jury.

13 ‘‘(B) QUALIFYING CAPITAL TRIAL EXPERI14 ENCE (MUST HAVE 1).—

15 ‘‘(i) lead or sole counsel within the

16 last 5 years in the trial of at least 1 capital

17 case that was tried through sentencing;

18 ‘‘(ii) co-counsel in the trial of no fewer

19 than 2 capital cases (1 of which occurred

20 within the last 5 years) that were tried

21 through sentencing;

22 ‘‘(iii) successful completion within the

23 preceding 2 years of a training program in

24 capital trial litigation that has been cer25 tified by the counsel certification authority
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1 or, if the authority has not certified a pro2 gram, successful completion of an at least

3 12-hour training program in capital trial

4 litigation for which continuing legal edu5 cation (CLE) credit is available, and which

6 the CLE authority in the State has cer7 tified as comporting with the objectives

8 and requirements of this section.

9 ‘‘(C) ALTERNATIVE QUALIFYING EXPERI10 ENCE FOR TRIAL.—Notwithstanding subpara11 graphs (A) and (B), an attorney shall be eligi12 ble for certification pursuant to paragraph (2)

13 or (3) of subsection (d) or appointment pursu14 ant to subsection (g) if the attorney—

15 ‘‘(i) has conducted 5 evidentiary hear16 ings and has been employed for more than

17 1 year by a capital resource center, a unit

18 or its equivalent that specializes in capital

19 cases within a public defender office, or a

20 public interest law office specializing in

21 capital litigation; or

22 ‘‘(ii) has been certified by the State

23 capital litigation resource center as com24 petent to be assigned to a capital trial;
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1 ‘‘(4) in the case of counsel appointed for appel2 late or unitary review, at least 1 of the qualifications

3 listed in subparagraph (A) and 1 of the qualifica4 tions listed in subparagraph (B), or 1 of the alter5 native qualifications listed in subparagraph (C):

6 ‘‘(A) QUALIFYING APPELLATE EXPERI7 ENCE (MUST HAVE 1).—Prior experience within

8 the past 5 years as—

9 ‘‘(i) lead or sole counsel in no fewer

10 than 10 appeals, of which no fewer than 5

11 were criminal appeals;

12 ‘‘(ii) lead or sole counsel in at least 6

13 criminal felony appeals;

14 ‘‘(iii) lead or sole counsel in 3 crimi15 nal or felony appeals, at least 1 of which

16 was an appeal of a murder or aggravated

17 murder conviction,

18 which were fully briefed.

19 ‘‘(B) QUALIFYING CAPITAL APPELLATE

20 EXPERIENCE (MUST HAVE 1).—

21 ‘‘(i) lead or sole counsel within the

22 last 5 years in the appeal or unitary review

23 of at least 1 capital case;

24 ‘‘(ii) co-counsel in the appeal or uni25 tary review of no fewer than 2 capital
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1 cases, 1 of which occurred within the last

2 5 years;

3 ‘‘(iii) successful completion within the

4 preceding 2 years of a training program in

5 the litigation of capital appeals that has

6 been certified by the counsel certification

7 authority or, if the authority has not cer8 tified a program, successful completion of

9 an at least 12-hour training program in

10 capital litigation with a focus on appeals

11 for which continuing legal education

12 (CLE) credit is available, and which the

13 CLE authority in the State has certified as

14 comporting with the objectives and the re15 quirements of this section.

16 ‘‘(C) ALTERNATIVE QUALIFYING EXPERI17 ENCE FOR APPEALS.—Notwithstanding sub18 paragraphs (A) and (B), an attorney shall be

19 eligible for certification pursuant to paragraph

20 (2) or (3) of subsection (c) or for appointment

21 pursuant to subsection (f) if the attorney—

22 ‘‘(i) has been employed for more than

23 1 year by a capital resource center, a unit

24 or its equivalent that specializes in capital

25 cases within a public defender office, or a
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1 public interest law office specializing in

2 capital litigation; or

3 ‘‘(ii) has been certified by the State

4 capital litigation resource center as com5 petent to be assigned to a capital appeal;

6 and

7 ‘‘(5) in the case of counsel appointed for post8 conviction proceedings, at least 2 of the qualifica9 tions listed in subparagraph (A) and at least 1 of

10 the qualifications listed in subparagraph (B), or 1 of

11 the alternative qualifications listed in subparagraph

12 (C):

13 ‘‘(A) QUALIFYING POST-CONVICTION EXPE14 RIENCE (MUST HAVE 2).—Prior experience with15 in the past 10 years as—

16 ‘‘(i) lead or sole counsel in no fewer

17 than 3 post-conviction proceedings;

18 ‘‘(ii) co-counsel in no fewer than 5

19 post-conviction proceedings;

20 ‘‘(iii) 1 of the trial qualifications listed

21 in paragraph (3)(A);

22 ‘‘(iv) 1 of the appellate qualifications

23 listed in paragraph (4)(A).

24 ‘‘(B) QUALIFYING CAPITAL POST-CONVIC25 TION EXPERIENCE (MUST HAVE 1).—
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1 ‘‘(i) lead or sole counsel within the

2 last 5 years in the trial (through sentenc3 ing), appeal, or post-conviction review of at

4 least 1 capital case;

5 ‘‘(ii) co-counsel in the trial (through

6 sentencing), appeal, or post-conviction re7 view of no fewer than 2 capital cases, 1 of

8 which occurred within the last 5 years;

9 ‘‘(iii) successful completion during the

10 preceding 2 years of a training program in

11 the litigation of capital post-conviction pro12 ceedings that has been certified by the

13 counsel certification authority or, if the au14 thority has not certified a program, suc15 cessful completion of an at least 12-hour

16 training program in capital litigation with

17 a focus on post-conviction proceedings for

18 which continuing legal education (CLE)

19 credit is available, and which the CLE au20 thority in the State has certified as com21 porting with the objectives and require22 ments of this section.

23 ‘‘(C) ALTERNATIVE QUALIFYING EXPERI24 ENCE FOR POST-CONVICTION PROCEEDINGS.—

25 Notwithstanding subparagraphs (A) and (B),
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1 an attorney shall be eligible for certification

2 pursuant to paragraph (2) or (3) of subsection

3 (d) or appointment pursuant to subsection (g)

4 if the attorney—

5 ‘‘(i) has conducted 3 evidentiary hear6 ings and has been employed for more than

7 1 year by a capital litigation resource cen8 ter, by a unit or its equivalent that special9 izes in capital cases within a public de10 fender office, or by a public interest law of11 fice specializing in capital litigation; or

12 ‘‘(ii) has been certified by the State

13 capital litigation resource center as com14 petent to be assigned to a capital post-con15 viction proceeding.

16 ‘‘(f) APPOINTMENT OF CERTIFIED COUNSEL.—(1)

17 The State court shall appoint at least 2 attorneys to rep18 resent an indigent at trial, and at least 1 attorney to rep19 resent an indigent at the appellate, unitary or post-convic20 tion review stage, including—

21 ‘‘(A) a lead counsel who is named on the roster

22 published pursuant to subsection (d)(5);

23 ‘‘(B) a defender organization or resource cen24 ter, which shall designate appropriate attorneys af-
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1 filiated with the organization, including a lead coun2 sel who is named on the roster; or

3 ‘‘(C) a lead counsel certified pursuant to sub4 section (d)(4).

5 ‘‘(2) The State court may appoint additional attor6 neys upon a showing of need.

7 ‘‘(g) APPOINTMENT OF NONCERTIFIED COUNSEL.—

8 (1) If there is no roster of attorneys published pursuant

9 to subsection (d)(5), or if no attorney on the roster can

10 accept the appointment and if no attorney certified pursu11 ant to subsection (d)(4) has been appointed, the State

12 court shall appoint at least 2 attorneys to represent an

13 indigent at trial, and at least 1 attorney to represent an

14 indigent at the appellate, unitary or post-conviction review

15 stage, including—

16 ‘‘(A) a lead counsel who possesses the minimum

17 qualifications required by subsection (e); or

18 ‘‘(B) a defender organization or resource cen19 ter, which shall designate appropriate attorneys af20 filiated with the organization, including a lead coun21 sel who possesses the qualifications required by sub22 section (e).

23 ‘‘(2) No attorney shall be appointed pursuant to this

24 subsection unless the State court has first conducted an

25 evidentiary hearing on the record in which the court deter-
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1 mines, after the attorney gives sworn testimony and pre2 sents documentary proof that the attorney possesses each

3 of the qualifications required by subsection (e), that the

4 attorney possesses the requisite qualifications. In making

5 its determination, the court shall, as to each qualification

6 required by subsection (e), make a specific finding on the

7 record that the attorney possesses the qualification.

8 ‘‘(h) No attorney may be denied certification pursu9 ant to paragraph (2) or (3) of subsection (d) or appoint10 ment pursuant to subsection (g) solely because of prior

11 employment as a prosecutor.

12 ‘‘(i) Prior to appointing counsel pursuant to this sec13 tion, the State court shall inquire as to whether counsel

14 maintains a workload which, by reason of its excessive

15 size, will interfere with the rendering of quality represen16 tation or create a substantial risk of a breach of profes17 sional obligations.

18 ‘‘(j) If a person entitled to an appointment of counsel

19 declines to accept an appointment, the State court shall

20 conduct, or cause to be conducted, a hearing, at which

21 the person and counsel proposed to be appointed shall be

22 present, to determine the person’s competence to decline

23 the appointment, and whether the person has competently

24 and knowingly declined it.
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1 ‘‘(k) If a State court fails to appoint counsel in a

2 proceeding specified in subsection (b), or if a State court

3 in a proceeding described in subsection (b)—

4 ‘‘(1) fails to appoint the number of counsel re5 quired in subsection (f);

6 ‘‘(2) appoints counsel whose name is not on the

7 roster published pursuant to subsection (d)(5);

8 ‘‘(3) appoints counsel who has failed to present

9 a certification issued pursuant to subsection (d)(4);

10 or

11 ‘‘(4) when subsection (g) applies, fails to hold

12 the hearing, receive the requisite testimony and

13 proof, or make the determination required by sub14 section (g),

15 a Federal court, in a proceeding under this chapter, shall

16 neither presume findings of fact made at such proceeding

17 to be correct nor decline to consider a claim on the ground

18 that it was not raised in such proceeding at the time or

19 in the manner prescribed by State law. In no cir20 cumstances other than those described in this subsection

21 shall a determination of noncompliance with this section

22 provide a basis for relief to a petitioner proceeding under

23 this chapter.

24 ‘‘(l) No attorney appointed to represent a prisoner

25 in State post-conviction proceedings shall have previously
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1 represented the prisoner at trial or on direct appeal in the

2 case for which the appointment is made, unless the pris3 oner and attorney expressly request continued representa4 tion.

5 ‘‘(m) Notwithstanding the rates and maximum limits

6 generally applicable to criminal cases and any other provi7 sion of law to the contrary, the highest State court with

8 jurisdiction over criminal cases shall, after notice and com9 ment, establish a schedule of hourly rates for the com10 pensation of attorneys appointed pursuant to this section

11 that are reasonable in light of the qualifications of attor12 neys appointed and the local practices for legal representa13 tion in cases reflecting the complexity and responsibility

14 of capital cases. For each attorney appointed pursuant to

15 this section, the State court shall separately order com16 pensation at the rates set by the highest State court for

17 the hours the attorneys reasonably expended on the case

18 and for reasonable expenses paid for investigative, expert,

19 and other reasonably necessary services. Any aggrieved

20 party may bring a private cause of action in Federal dis21 trict court to enforce the provisions of this subsection for

22 the establishment of a schedule of reasonable hourly rates

23 for the compensation of attorneys. In such an action, the

24 Federal court shall not independently determine the ap25 propriate rates, but shall decide whether the hourly rates
36

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1 as scheduled by the State court are within the range of

2 reasonableness consistent with the criteria stated in this

3 subsection. If the hourly rates as scheduled are not within

4 the range of reasonableness, or if no schedule of rates has

5 been established, the court shall grant appropriate injunc6 tive or declaratory relief, except that the court shall not

7 grant relief that disturbs any criminal conviction or sen8 tence, obstructs the prosecution of State criminal proceed9 ings, or alters proceedings arising under this chapter.

10 ‘‘(n) The ineffectiveness or incompetence of counsel

11 appointed pursuant to this section during State or Federal

12 post-conviction proceedings shall not be a ground for relief

13 in a proceeding arising under section 2254. This limitation

14 shall not preclude the appointment of different counsel at

15 any phase of State or Federal post-conviction proceedings.

16 ‘‘(o) Nothing in this section changes the constitu17 tional standard governing claims of ineffective assistance

18 of counsel pursuant to the sixth amendment to the Con19 stitution of the United States. A determination of non20 compliance with this section (as opposed to the facts which

21 support such a determination) shall not provide a basis

22 for a claim of constitutionally ineffective assistance of

23 counsel.

24 ‘‘(p) The requirements of this section shall apply to

25 any appointment of counsel made after the effective date
37

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1 of this section in any trial, direct appeal, or unitary review

2 of a capital indigent. Counsel shall be appointed as pro3 vided in this section in any post-conviction proceeding

4 commenced after the effective date of this section. In no

5 case shall counsel appointed for a proceeding commenced

6 before the effective date of this section be subject to the

7 requirements of this section, nor shall any person whose

8 counsel was appointed for any trial, appeal, post-convic9 tion or unitary review before the effective date of this sec10 tion be entitled to any relief, including application of sub11 section (k), based on a claim that counsel was not ap12 pointed in conformity with subsection (f) or (g).’’.

13 (b) TECHNICAL AMENDMENT.—The chapter analysis

14 for chapter 153 of title 28, United States Code, as amend15 ed by section 304(a)(2), is amended by adding at the end

16 the following new item:

‘‘2258. Counsel in capital cases; State court.’’.

17 SEC. 312. CAPITAL LITIGATION FUNDING.

18 (a) GRANTS FOR CAPITAL HABEAS CORPUS PROS19 ECUTIONS.—

20 (1) IN GENERAL.—Subpart 2 of part E of title

21 I of the Omnibus Crime Control and Safe Streets

22 Act of 1968 (42 U.S.C. 3711 et seq.) is amended by

23 adding at the end the following new section:
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1 ‘‘HABEAS CORPUS LITIGATION

2 ‘‘SEC. 511A. Notwithstanding any other provision of

3 this title, the Director shall provide grants to the States,

4 from the funding allocated pursuant to section 511, for

5 the purpose of supporting litigation pertaining to Federal

6 habeas corpus petitions in capital cases. The total funding

7 authorized for such grants within any fiscal year shall be

8 equal to the funding provided to capital resource centers,

9 pursuant to Federal appropriation, in the same fiscal

10 year.’’.

11 (2) TECHNICAL AMENDMENT.—The table of

12 contents of title I of the Omnibus Crime Control and

13 Safe Streets Act of 1968 (42 U.S.C. preceding

14 3701) is amended by inserting after the item relat15 ing to section 511 the following new item:

‘‘Sec. 511A. Habeas corpus litigation.’’.

16 (b) GRANTS FOR STATE CAPITAL LITIGATION.—

17 (1) IN GENERAL.—Title I of the Omnibus

18 Crime Control and Safe Streets Act of 1968 (42

19 U.S.C. 3711 et seq.), as amended by section 103(a)

20 is amended—

21 (A) by redesignating part R as part S;

22 (B) by redesignating section 1801 as sec23 tion 1901; and

24 (C) by inserting after part Q the following

25 new part:
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1 ‘‘PART R—GRANTS FOR STATE CAPITAL

2 LITIGATION

3 ‘‘SEC. 1801. GRANT AUTHORIZATION.

4 ‘‘The Director of the Bureau of Justice Assistance

5 shall make grants to States from amounts appropriated

6 to carry out this part for the use by States and by local

7 entities in the States to comply with section 2258 of title

8 28, United States Code.

9 ‘‘SEC. 1802. STATE APPLICATIONS.

10 ‘‘(a) IN GENERAL.—(1) To request a grant under

11 this part, the Chief Executive of a State shall submit an

12 application to the Director in such form and containing

13 such information as the Director may reasonably require.

14 ‘‘(2) An application under paragraph (1) shall include

15 assurances that Federal funds received under this part

16 shall be used to supplement, not supplant, non-Federal

17 funds that would otherwise be available for activities fund18 ed under this part.

19 ‘‘(b) STATE OFFICE.—The office designated under

20 section 507—

21 ‘‘(1) shall prepare an application under this sec22 tion; and

23 ‘‘(2) shall administer grant funds received

24 under this part, including review of spending, proc25 essing, progress, financial reporting, technical assist-
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1 ance, grant adjustments, accounting, auditing, and

2 fund disbursement.

3 ‘‘SEC. 1803. REVIEW OF STATE APPLICATIONS.

4 ‘‘(a) IN GENERAL.—The Director shall make a grant

5 under section 1801 to carry out the activities described

6 in the application submitted by an applicant under section

7 1802 upon determining that—

8 ‘‘(1) the application is consistent with the re9 quirements of this part; and

10 ‘‘(2) before the approval of the application, the

11 Bureau has made an affirmative finding in writing

12 that the proposed activities have been reviewed in

13 accordance with this part.

14 ‘‘(b) APPROVAL.—Each application submitted under

15 section 1802 shall be considered to be approved, in whole

16 or in part, by the Director not later than 45 days after

17 first received unless the Director informs the applicant of

18 specific reasons for disapproval.

19 ‘‘(c) DISAPPROVAL NOTICE AND RECONSIDER20 ATION.—The Director shall not disapprove any application

21 without first affording the applicant reasonable notice and

22 opportunity for reconsideration.

23 ‘‘SEC. 1804. DISTRIBUTION OF FUNDS.

24 ‘‘For fiscal years 1994, 1995, and 1996, the Federal

25 share of a grant made under this part may not exceed
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1 75 percent of the total costs of the activities described in

2 the application submitted under section 1702 for the fiscal

3 year for which the project receives assistance under this

4 part. Thereafter, the Federal share of a grant made under

5 this part may not exceed 50 percent.

6 ‘‘SEC. 1805. EVALUATION.

7 ‘‘(a) IN GENERAL.—(1) A State that receives a grant

8 under this part shall submit to the Director an evaluation

9 not later than March 1 of each year in accordance with

10 guidelines issued by the Director.

11 ‘‘(2) The Director may waive the requirement speci12 fied in subsection (a) if the Director determines that such

13 evaluation is not warranted in the case of any particular

14 State.

15 ‘‘(b) DISTRIBUTION.—A State or local entity may use

16 not more than 5 percent of the funds it receives under

17 this part to develop an evaluation program under this sec18 tion.’’.

19 (2) TECHNICAL AMENDMENT.—The table of

20 contents of title I of the Omnibus Crime Control and

21 Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.),

22 as amended by section 103(b), is amended by strik23 ing the matter relating to part R and inserting the

24 following:

‘‘PART R—GRANTS FOR STATE CAPITAL LITIGATION

‘‘Sec. 1801. Grant authorization.
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‘‘Sec. 1802. State applications.

‘‘Sec. 1803. Review of State applications.

‘‘Sec. 1804. Distribution of funds.

‘‘Sec. 1805. Evaluation.

‘‘PART S—TRANSITION; EFFECTIVE DATE; REPEALER

‘‘Sec. 1901. Confirmation of rules, authorities, and proceedings.’’.

1 (3) AUTHORIZATION OF APPROPRIATIONS.—

2 Section 1001(a) of title I of the Omnibus Crime

3 Control and Safe Streets Act of 1968 (42 U.S.C.

4 3793(a)), as amended by section 103(c), is amend5 ed—

6 (A) in paragraph (3) by striking ‘‘and Q’’

7 and inserting ‘‘Q, and R’’; and

8 (B) by adding at the end the following new

9 paragraph:

10 ‘‘(12) There are authorized to be appropriated $50

11 million for each of fiscal years 1995, 1996, and 1997 to

12 carry out activities under part R.’’.

13 SEC. 313. ABROGATION OF STATE SOVEREIGN IMMUNITY.

14 Any State, any instrumentality of a State, and any

15 officer or employee of a State or instrumentality of a State

16 acting in an official capacity, shall not be immune, under

17 the Eleventh Amendment to the Constitution of the

18 United States, from suit in Federal court for a violation

19 of subsection 2258(c) or (m) of title 28, United States

20 Code, as added by section 308(a).
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1 SEC. 314. EFFECTIVE DATE.

2 (a) IN GENERAL.—Except as provided in subsection

3 (b), this title and the amendments made by this title shall

4 take effect on the date that is 180 days after the date

5 of enactment of this Act.

6 (b) SECTION 2258(b) OF TITLE 28, UNITED STATES

7 CODE.—Section 2258(b) of title 28, United States Code,

8 as added by section 308(a), shall take effect on the date

9 of enactment of this Act.

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