II

103D CONGRESS

1ST SESSION S. 1441

To reform habeas corpus.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. BIDEN introduced the following bill; which was read twice and 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 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Habeas Corpus Reform

5 Act of 1993’’.

6 SEC. 2. 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 ‘‘(c)(1) Notwithstanding the filing deadline imposed

9 by subsection (b), if a petitioner under a sentence of death

10 has filed a petition for post-conviction review in State

11 court within 270 days of the appointment of counsel as

12 required by section 2258, the petitioner shall have 180

13 days to file a petition under this chapter upon completion

14 of the State court review.

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

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

17 to a petitioner under sentence of death of the time require18 ments established by this section. Such notice shall be pro19 vided upon the final disposition of the initial petition for

20 State post-conviction review.

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

22 imposed, the time requirements established by subsection

23 (b) shall be tolled—
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1 ‘‘(A) during any period in which the State has

2 failed to appoint counsel for State post-conviction re3 view as required in section 2258;

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

5 is incompetent; and

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

7 60 days, if the petitioner makes a showing of good

8 cause.

9 ‘‘(d)(1) Notwithstanding the filing deadline imposed

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

11 than death has filed—

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

13 State court; or

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

15 review,

16 before the expiration of the period described in subsection

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

18 under this chapter upon completion of the State court re19 view.

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

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

22 than death has been imposed unless—

23 ‘‘(A) the State has provided notice to the peti24 tioner of the time requirements established by this

25 section and of the availability of counsel as described
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1 in subparagraph (B); such notice shall be provided

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

3 time the petitioner’s conviction becomes final, except

4 that in a case in which the petitioner’s conviction be5 comes final within 30 days of sentencing, the State

6 may provide both the oral and the written notice at

7 sentencing; in all cases, the written notice to peti8 tioner shall include easily understood instructions for

9 filing a request for counsel for State post-conviction

10 review; and

11 ‘‘(B)(i) the State provides counsel to the peti12 tioner upon the filing of a request for counsel for

13 State post-conviction review; or

14 ‘‘(ii) the State provides counsel to the peti15 tioner, if a request for counsel for State post-convic16 tion review is not filed, upon the filing of a petition

17 for post-conviction review.

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

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

20 death has been imposed—

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

22 is incompetent; and

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

24 60 days, if the petitioner makes a showing of good

25 cause.
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1 ‘‘(e) An application that is not filed within the time

2 requirements established by subsection (b) shall be gov3 erned by section 2244(b).’’.

4 (b) TECHNICAL AMENDMENT.—The chapter analysis

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

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

7 follows:

‘‘2242. Filing of habeas corpus petition; time requirements; tolling rules.’’.

8 SEC. 3. STAYS OF EXECUTION IN CAPITAL CASES.

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

10 amended—

11 (1) by inserting ‘‘(a)(1)’’ before the first para12 graph and ‘‘(2)’’ before the second paragraph; and

13 (2) by adding at the end the following new sub14 sections:

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

16 a warrant or order setting an execution shall be stayed

17 upon application to any court that would have jurisdiction

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

19 shall be contingent upon the exercise of reasonable dili20 gence by the applicant in pursuing relief with respect to

21 the sentence and shall expire if—

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

23 this chapter within the time requirements estab24 lished by section 2242;
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1 ‘‘(2) upon completion of district court and court

2 of appeals review under section 2254, the application

3 is denied and—

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

5 writ of certiorari expires before a petition is

6 filed;

7 ‘‘(B) a timely petition for a writ of certio8 rari is filed and the Supreme Court denies the

9 petition; or

10 ‘‘(C) a timely petition for certiorari is filed

11 and, upon consideration of the case, the Su12 preme Court disposes of it in a manner that

13 leaves the capital sentence undisturbed; or

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

15 the presence of counsel, and after being advised of

16 the consequences of the decision, the applicant com17 petently and knowingly waives the right to pursue

18 habeas corpus relief under this chapter.

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

20 occurred, no Federal court thereafter shall have the au21 thority to enter a stay of execution unless the applicant

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

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

24 to this subsection shall expire if, after the grant of the
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1 stay, 1 of the conditions specified in subsection (b) (2)

2 or (3) occurs.’’.

3 SEC. 4. LIMITS ON NEW RULES; STANDARD OF REVIEW.

4 (a) LIMITS ON NEW RULES.—

5 (1) IN GENERAL.—Chapter 153 of Title 28,

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

7 is amended by adding at the end the following new

8 section:

9 ‘‘§ 2257. Law applicable

10 ‘‘(a) Except as provided in subsection (b), in a case

11 subject to this chapter, the court shall not announce or

12 apply a new rule to grant habeas corpus relief.

13 ‘‘(b) A court considering a claim under this chapter

14 shall apply a new rule when—

15 ‘‘(1) the new rule places a class of individual

16 conduct beyond the power of the criminal lawmaking

17 authority to proscribe or prohibits the imposition of

18 a certain type of punishment for a class of persons

19 because of their status or offense; or

20 ‘‘(2) the new rule constitutes a watershed rule

21 of criminal procedure implicating the fundamental

22 fairness and accuracy of the criminal proceeding.

23 ‘‘(c) As used in this section, a ‘new rule’ is a rule

24 that changes the constitutional or statutory standards
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1 that prevailed at the time the petitioner’s conviction and

2 sentence became final on direct appeal.’’.

3 (2) TECHNICAL AMENDMENT.—The chapter

4 analysis for chapter 153 of title 28, United States

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

6 adding at the end the following new item:

‘‘2257. Law applicable.’’.

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

8 28, United States Code, is amended by adding at the end

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

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

11 Federal courts, in reviewing an application under this sec12 tion, shall review de novo the rulings of a State court on

13 matters of Federal law, including the application of Fed14 eral law to facts, regardless of whether the opportunity

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

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

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

18 proving harmlessness.’’.

19 SEC. 5. LIMITS ON SUCCESSIVE PETITIONS.

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

21 amended to read as follows:

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

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

24 dismissed unless—

25 ‘‘(A) the petitioner shows that—
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1 ‘‘(i) the failure to raise the claim pre2 viously was the result of interference by State

3 officials with the presentation of the claim, in

4 violation of the Constitution or laws of the

5 United States;

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

7 applicable under section 2257 and was pre8 viously unavailable; or

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

10 could not have been discovered previously

11 through the exercise of reasonable diligence;

12 and

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

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

15 be sufficient to—

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

17 the factfinder’s determination of the applicant’s

18 guilt of the offense or offenses for which the

19 sentence was imposed; or

20 ‘‘(ii) demonstrate that no reasonable sen21 tencing authority would have found an aggra22 vating circumstance or other condition of eligi23 bility for a capital or noncapital sentence, or

24 otherwise would have imposed a sentence of

25 death.
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1 ‘‘(2) Notwithstanding other matters pending before

2 the court, claims for relief under this subsection from a

3 case in which a sentence of death was imposed shall re4 ceive a prompt review in a manner consistent with the in5 terests of justice.’’.

6 SEC. 6. NEW EVIDENCE.

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

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

9 by adding at the end the following new section:

10 ‘‘§ 2256. Capital cases; new evidence

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

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

13 United States shall include a claim by a person under sen14 tence of death that is based on factual allegations that,

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

16 would be sufficient to demonstrate that no reasonable

17 factfinder would have found the petitioner guilty of the

18 offense or that no reasonable sentencing authority would

19 have found an aggravating circumstance or other condi20 tion of eligibility for the sentence. Such a claim shall be

21 dismissed if the facts supporting the claim were actually

22 known to the petitioner during a prior stage of the litiga23 tion in which the claim was not raised. Notwithstanding

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

25 be subject to section 2244(b) or the time requirements es-
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1 tablished by section 2242. In all other respects, the claim

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

3 chapter.’’.

4 (b) TECHNICAL AMENDMENT.—The chapter analysis

5 for chapter 153 of title 28, United States Code, as amend6 ed by section 304(a)(2), is amended by adding at the end

7 the following new item:

‘‘2258. Capital cases; new evidence.’’.

8 SEC. 7. CERTIFICATES OF PROBABLE CAUSE.

9 The third paragraph of section 2253, title 28, United

10 States Code, is amended by adding at the end the follow11 ing: ‘‘However, an applicant under sentence of death shall

12 have a right of appeal without a certificate of probable

13 cause, except after denial of a habeas corpus petition filed

14 under section 2244(b).’’.

15 SEC. 8. PROVISION OF COUNSEL.

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

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

18 by adding at the end the following new section:

19 ‘‘§ 2258. Counsel in capital cases; State court

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

21 death may be imposed under State law shall provide legal

22 services to—

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

24 capital punishment is sought;
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1 ‘‘(B) indigents who have been sentenced to

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

3 unitary review in State court; and

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

5 death and who seek certiorari review of State court

6 judgments in the United States Supreme Court.

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

8 relief to nonindigents.

9 ‘‘(b) COUNSEL CERTIFICATION AUTHORITY.—A

10 State in which a sentence of death may be imposed under

11 State law shall, within 180 days after the date of enact12 ment of this subsection, establish a State counsel certifi13 cation authority, which shall be comprised of members of

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

15 the representation of criminal defendants in capital cases,

16 and shall be comprised of a balanced representation from

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

18 a statewide defender organization, a capital case resource

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

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

21 unitary review practice. If a State fails to establish a coun22 sel certification authority within 180 days after the date

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

24 may be brought in Federal district court to enforce this

25 subsection by any aggrieved party, including a defendant
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1 eligible for appointed representation under this subsection

2 or a member of an organization eligible for representation

3 on the counsel certification authority. If the court finds

4 that the State has failed to establish a counsel certification

5 authority as required by this subsection, the court shall

6 grant appropriate injunctive and declaratory relief, except

7 that the court shall not grant relief that disturbs any

8 criminal conviction or sentence, obstructs the prosecution

9 of State criminal proceedings, or alters proceedings arising

10 under this chapter.

11 ‘‘(c) DUTIES OF AUTHORITY; CERTIFICATION OF

12 COUNSEL.—The counsel certification authority shall—

13 ‘‘(1) establish and publish standards governing

14 qualifications of counsel, which shall include—

15 ‘‘(A) knowledge and understanding of per16 tinent legal authorities regarding issues in cap17 ital cases;

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

19 and litigation in capital cases, the investigation

20 of capital cases and the psychiatric history and

21 current condition of capital clients, and the

22 preparation and writing of legal papers in cap23 ital cases;

24 ‘‘(C) the minimum qualifications required

25 by subsection (d); and
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1 ‘‘(D) any additional qualifications relevant

2 to the representation of capital defendants;

3 ‘‘(2) establish application and certification pro4 cedures for attorneys who possess the qualifications

5 established pursuant to paragraph (1);

6 ‘‘(3) establish application and certification pro7 cedures for attorneys who do not possess all the

8 qualifications established pursuant to paragraph (1)

9 but who possess, in addition to the minimum quali10 fications required by subsection (d), additional re11 sources (such as an affiliation with a publicly funded

12 defender organization) and experience that enable

13 them to provide quality legal representation com14 parable to that of an attorney possessing the quali15 fications established pursuant to paragraph (1);

16 ‘‘(4) establish application and certification pro17 cedures, to be used on a case by case basis, for at18 torneys who do not necessarily possess the minimum

19 qualifications required by subsection (d), but who

20 possess other extraordinary experience and resources

21 that enable them to provide quality legal representa22 tion comparable to that of an attorney possessing

23 the qualifications established pursuant to paragraph

24 (1);
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1 ‘‘(5) publish a current roster of attorneys cer2 tified pursuant to paragraphs (2) and (3) to be ap3 pointed in capital cases;

4 ‘‘(6) establish and publish standards governing

5 the performance of counsel in capital cases, includ6 ing standards that proscribe abusive practices and

7 mandate sound practices in order to further the fair

8 and orderly administration of justice;

9 ‘‘(7) monitor the performance of attorneys cer10 tified pursuant to this subsection; and

11 ‘‘(8) delete from the roster the name of any at12 torney who fails to meet the qualification or per13 formance standards established pursuant to this

14 subsection.

15 ‘‘(d) MINIMUM COUNSEL STANDARDS.—All counsel

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

17 (c) or appointed pursuant to subsection (f) shall possess,

18 in addition to any qualifications required by State or local

19 law, the following minimum qualifications:

20 ‘‘(1) Familiarity with the performance stand21 ards established by the counsel certification author22 ity.

23 ‘‘(2) Familiarity with the appropriate court sys24 tem, including the procedural rules regarding timeli25 ness of filings and procedural default.
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1 ‘‘(3) In the case of counsel appointed for the

2 trial or sentencing stages, at least 2 of the qualifica3 tions listed in subparagraph (A) and 1 of the quali4 fications listed in subparagraph (B), or 1 of the al5 ternative qualifications listed in subparagraph (C).

6 ‘‘(A) QUALIFYING TRIAL EXPERIENCE

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

8 last 10 years as—

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

10 trials, of which no fewer than 5 were crimi11 nal jury trials;

12 ‘‘(ii) lead or sole counsel in 3 criminal

13 jury trials in which the charge was murder

14 or aggravated murder;

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

16 trials in which the charge was murder or

17 aggravated murder; or

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

19 than 5 criminal jury trials involving crimes

20 of violence against persons, punishable by

21 imprisonment of over 1 year,

22 which were tried to a verdict or to a deadlocked

23 jury.

24 ‘‘(B) QUALIFYING CAPITAL TRIAL EXPERI25 ENCE (MUST HAVE 1).—
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1 ‘‘(i) lead or sole counsel within the

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

3 case that was tried through sentencing;

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

5 than 2 capital cases (1 of which occurred

6 within the last 5 years) that were tried

7 through sentencing; or

8 ‘‘(iii) successful completion within the

9 preceding 2 years of a training program in

10 capital trial litigation that has been cer11 tified by the counsel certification authority

12 or, if the authority has not certified a pro13 gram, successful completion of an at least

14 12-hour training program in capital trial

15 litigation for which continuing legal edu16 cation (CLE) credit is available, and which

17 the CLE authority in the State has cer18 tified as comporting with the objectives

19 and requirements of this section.

20 ‘‘(C) ALTERNATIVE QUALIFYING EXPERI21 ENCE FOR TRIAL.—Notwithstanding subpara22 graphs (A) and (B), an attorney shall be eligi23 ble for certification pursuant to paragraph (2)

24 or (3) of subsection (c) or appointment pursu25 ant to subsection (f) if the attorney—
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1 ‘‘(i) has conducted 5 evidentiary hear2 ings and has been employed for more than

3 1 year by a capital resource center, a unit

4 or its equivalent that specializes in capital

5 cases within a public defender office, or a

6 public interest law office specializing in

7 capital litigation; or

8 ‘‘(ii) has conducted 5 evidentiary

9 hearings and has been certified by the

10 State capital litigation resource center as

11 competent to be assigned to a capital trial;

12 ‘‘(4) in the case of counsel appointed for appel13 late or unitary review, at least 1 of the qualifications

14 listed in subparagraph (A) and 1 of the qualifica15 tions listed in subparagraph (B), or 1 of the alter16 native qualifications listed in subparagraph (C).

17 ‘‘(A) QUALIFYING APPELLATE EXPERI18 ENCE (MUST HAVE 1).—Prior experience within

19 the past 5 years as—

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

21 than 10 appeals, of which no fewer than 5

22 were criminal appeals;

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

24 criminal felony appeals; or
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1 ‘‘(iii) lead or sole counsel in 3 crimi2 nal or felony appeals, at least 1 of which

3 was an appeal of a murder or aggravated

4 murder conviction,

5 which were fully briefed.

6 ‘‘(B) QUALIFYING CAPITAL APPELLATE

7 EXPERIENCE (MUST HAVE 1).—

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

9 last 5 years in the appeal or unitary review

10 of at least 1 capital case;

11 ‘‘(ii) co-counsel in the appeal or uni12 tary review of no fewer than 2 capital

13 cases, 1 of which occurred within the last

14 5 years; or

15 ‘‘(iii) successful completion within the

16 preceding 2 years of a training program in

17 the litigation of capital appeals that has

18 been certified by the counsel certification

19 authority or, if the authority has not cer20 tified a program, successful completion of

21 an at least 12-hour training program in

22 capital litigation with a focus on appeals

23 for which continuing legal education

24 (CLE) credit is available, and which the

25 CLE authority in the State has certified as
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1 comporting with the objectives and the re2 quirements of this section.

3 ‘‘(C) ALTERNATIVE QUALIFYING EXPERI4 ENCE FOR APPEALS.—Notwithstanding sub5 paragraphs (A) and (B), an attorney shall be

6 eligible for certification pursuant to paragraph

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

8 pursuant to subsection (f) if the attorney—

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

10 1 year by a capital resource center, a unit

11 or its equivalent that specializes in capital

12 cases within a public defender office, or a

13 public interest law office specializing in

14 capital litigation; or

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

16 capital litigation resource center as com17 petent to be assigned to a capital appeal;

18 and

19 ‘‘(5) in the case of counsel appointed for post20 conviction proceedings, at least 2 of the qualifica21 tions listed in subparagraph (A) and at least 1 of

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

23 the alternative qualifications listed in subparagraph

24 (C).
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1 ‘‘(A) QUALIFYING POST-CONVICTION EXPE2 RIENCE (MUST HAVE 2).—Prior experience with3 in the past 10 years as—

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

5 than 3 post-conviction proceedings;

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

7 post-conviction proceedings;

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

9 in paragraph (3)(A); or

10 ‘‘(iv) 1 of the appellate qualifications

11 listed in paragraph (4)(A).

12 ‘‘(B) QUALIFYING CAPITAL POST-CONVIC13 TION EXPERIENCE (MUST HAVE 1).—

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

15 last 5 years in the trial (through sentenc16 ing), appeal, or post-conviction review of at

17 least 1 capital case;

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

19 sentencing), appeal, or post-conviction re20 view of no fewer than 2 capital cases, 1 of

21 which occurred within the last 5 years; or

22 ‘‘(iii) successful completion during the

23 preceding 2 years of a training program in

24 the litigation of capital post-conviction pro25 ceedings that has been certified by the
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1 counsel certification authority or, if the au2 thority has not certified a program, suc3 cessful completion of an at least 12-hour

4 training program in capital litigation with

5 a focus on post-conviction proceedings for

6 which continuing legal education (CLE)

7 credit is available, and which the CLE au8 thority in the State has certified as com9 porting with the objectives and require10 ments of this section.

11 ‘‘(C) ALTERNATIVE QUALIFYING EXPERI12 ENCE FOR POST-CONVICTION PROCEEDINGS.—

13 Notwithstanding subparagraphs (A) and (B),

14 an attorney shall be eligible for certification

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

16 (c) or appointment pursuant to subsection (f) if

17 the attorney—

18 ‘‘(i) has conducted 3 evidentiary hear19 ings and has been employed for more than

20 1 year by a capital litigation resource cen21 ter, by a unit or its equivalent that special22 izes in capital cases within a public de23 fender office, or by a public interest law of24 fice specializing in capital litigation; or
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1 ‘‘(ii) has conducted 3 evidentiary

2 hearings and has been certified by the

3 State capital litigation resource center as

4 competent to be assigned to a capital post5 conviction proceeding.

6 ‘‘(e) APPOINTMENT OF CERTIFIED COUNSEL.—(1)

7 The State court shall appoint at least 2 attorneys to rep8 resent an indigent at trial, and at least 1 attorney to rep9 resent an indigent at the appellate, unitary or post-convic10 tion review stage, including—

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

12 published pursuant to subsection (c)(5);

13 ‘‘(B) a defender organization or resource cen14 ter, which shall designate appropriate attorneys af15 filiated with the organization, including a lead coun16 sel who is named on the roster; or

17 ‘‘(C) a lead counsel certified pursuant to sub18 section (c)(4).

19 ‘‘(2) The State court may appoint additional attor20 neys upon a showing of need.

21 ‘‘(f) APPOINTMENT OF NONCERTIFIED COUNSEL.—

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

23 to subsection (c)(5), or if no attorney on the roster can

24 accept the appointment and if no attorney certified pursu25 ant to subsection (c)(4) has been appointed, the State
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1 court shall appoint at least 2 attorneys to represent an

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

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

4 stage, including—

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

6 qualifications required by subsection (d); or

7 ‘‘(B) a defender organization or resource cen8 ter, which shall designate appropriate attorneys af9 filiated with the organization, including a lead coun10 sel who possesses the qualifications required by sub11 section (d).

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

13 subsection unless the State court has first conducted an

14 evidentiary hearing on the record in which the court deter15 mines, after the attorney gives sworn testimony and pre16 sents documentary proof that the attorney possesses each

17 of the qualifications required by subsection (d), that the

18 attorney possesses the requisite qualifications. In making

19 its determination, the court, shall, to each qualification re20 quired by subsection (d), shall make a specific finding on

21 the record that the attorney possesses the qualification.

22 ‘‘(g) No attorney may be denied certification pursu23 ant to paragraph (2) or (3) of subsection (c) or appoint24 ment pursuant to subsection (f) solely because of prior em25 ployment as a prosecutor.
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1 ‘‘(h) Prior to appointing counsel pursuant to this sec2 tion, the State court shall inquire as to whether counsel

3 maintains a workload which, by reason of its excessive

4 size, will interfere with the rendering of quality represen5 tation or create a substantial risk of a breach of profes6 sional obligations.

7 ‘‘(i) If a person entitled to an appointment of counsel

8 declines to accept an appointment, the State court shall

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

10 the person and counsel proposed to be appointed shall be

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

12 the appointment, and whether the person has competently

13 and knowingly declined it.

14 ‘‘(j) If a State court fails to appoint counsel in a pro15 ceeding specified in subsection (a), or if a State court in

16 a proceeding described in subsection (a)—

17 ‘‘(1) fails to appoint the number of counsel re18 quired in subsection (e);

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

20 roster published pursuant to subsection (c)(5);

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

22 a certification issued pursuant to subsection (c)(4);

23 or

24 ‘‘(4) when subsection (f) applies, fails to hold

25 the hearing, receive the requisite testimony and
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1 proof, or make the determination required by sub2 section (f),

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

4 neither presume findings of fact made at such proceeding

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

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

7 in the manner prescribed by State law. In no cir8 cumstances other than those described in this subsection

9 shall a determination of noncompliance with this section

10 provide a basis for relief to a petitioner proceeding under

11 this chapter.

12 ‘‘(k) No attorney appointed to represent a prisoner

13 in State post-conviction proceedings shall have previously

14 represented the prisoner at trial or on direct appeal in the

15 case for which the appointment is made, unless the pris16 oner and attorney expressly request continued representa17 tion.

18 ‘‘(l) Notwithstanding the rates and maximum limits

19 generally applicable to criminal cases and any other provi20 sion of law to the contrary, the highest State court with

21 jurisdiction over criminal cases shall, after notice and com22 ment, establish a schedule of hourly rates for the com23 pensation of attorneys appointed pursuant to this section

24 that are reasonable in light of the qualifications of attor25 neys appointed and the local practices for legal representa-
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1 tion in cases reflecting the complexity and responsibility

2 of capital cases. For each attorney appointed pursuant to

3 this section, the State court shall separately order com4 pensation at the rates set by the highest State court for

5 the hours the attorneys reasonably expended on the case

6 and for reasonable expenses paid for investigative, expert,

7 and other reasonably necessary services. Any aggrieved

8 party may bring a private cause of action in Federal dis9 trict court to enforce the provisions of this subsection for

10 the establishment of a schedule of reasonable hourly rates

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

12 Federal court shall not independently determine the ap13 propriate rates, but shall decide whether the hourly rates

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

15 reasonableness consistent with the criteria stated in this

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

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

18 been established, the court shall grant appropriate injunc19 tive or declaratory relief, except that the court shall not

20 grant relief that disturbs any criminal conviction or sen21 tence, obstructs the prosecution of State criminal proceed22 ings, or alters proceedings arising under this chapter.

23 ‘‘(m) The ineffectiveness or incompetence of counsel

24 appointed pursuant to this section during State or Federal

25 post-conviction proceedings shall not be a ground for relief
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1 in a proceeding arising under section 2254. This limitation

2 shall not preclude the appointment of different counsel at

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

4 ‘‘(n) Nothing in this section changes the constitu5 tional standard governing claims of ineffective assistance

6 of counsel pursuant to the sixth amendment to the Con7 stitution of the United States. A determination of non8 compliance with this section (as opposed to the facts which

9 support such a determination) shall not provide a basis

10 for a claim of constitutionally ineffective assistance of

11 counsel.

12 ‘‘(o) The requirements of this section shall apply to

13 any appointment of counsel made after the effective date

14 of this Act in any trial, direct appeal, or unitary review

15 of a capital indigent. Counsel shall be appointed as pro16 vided in this section in any post-conviction proceeding

17 commenced after the effective date of this Act. In no case

18 shall counsel appointed for a proceeding commenced be19 fore the effective date of this Act be subject to the require20 ments of this section, nor shall any person whose counsel

21 was appointed for any trial, appeal, post-conviction or uni22 tary review before the effective date of this Act be entitled

23 to any relief, including application of subsection (j), based

24 on a claim that counsel was not appointed in conformity

25 with subsection (e) or (f).’’.
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1 (b) TECHNICAL AMENDMENT.—The chapter analysis

2 for chapter 153 of title 28, United States Code, as amend3 ed by section 304(a)(2), is amended by adding at the end

4 the following new item:

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

5 SEC. 9. CAPITAL LITIGATION FUNDING.

6 (a) GRANTS UNDER THE EDWARD BYRNE GRANT

7 PROGRAM.—

8 (1) IN GENERAL.—Part E of title I of the Om9 nibus Crime Control and Safe Streets Act of 1968

10 (42 U.S.C. 3711 et seq.) is amended by adding at

11 the end the following new section:

12 ‘‘HABEAS CORPUS LITIGATION

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

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

15 from the funding allocated pursuant to section 511, for

16 the purpose of supporting litigation pertaining to Federal

17 habeas corpus petitions in capital cases. The total funding

18 available for such grants within any fiscal year shall be

19 equal to the funding provided to capital resource centers,

20 pursuant to Federal appropriation, in the same fiscal

21 year.’’.

22 (2) TECHNICAL AMENDMENT.—The table of

23 contents of title I of the Omnibus Crime Control and

24 Safe Streets Act of 1968 (42 U.S.C. preceding
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1 3701) is amended by inserting after the item relat2 ing to section 511 the following new item:

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

3 (b) GRANTS FOR STATE CAPITAL LITIGATION.—Title

4 I of the Omnibus Crime Control and Safe Streets Act of

5 1968 (42 U.S.C. 3711 et seq.), as amended by section

6 103(a) is amended—

7 (1) by redesignating part R as part S;

8 (2) by redesignating section 1801 as section

9 1901; and

10 (3) by inserting after part Q the following new

11 part:

12 ‘‘PART R—GRANTS FOR STATE CAPITAL

13 LITIGATION

14 ‘‘SEC. 1801. GRANT AUTHORIZATION.

15 ‘‘The Director of the Bureau of Justice Assistance

16 shall make grants to States from amounts appropriated

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

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

19 28, United States Code.

20 ‘‘SEC. 1802. STATE APPLICATIONS.

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

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

23 application to the Director in such form and containing

24 such information as the Director may reasonably require.
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1 ‘‘(2) An application under paragraph (1) shall include

2 assurances that Federal funds received under this part

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

4 funds that would otherwise be available for activities fund5 ed under this part.

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

7 section 507—

8 ‘‘(1) shall prepare an application under this sec9 tion; and

10 ‘‘(2) shall administer grant funds received

11 under this part, including review of spending, proc12 essing, progress, financial reporting, technical assist13 ance, grant adjustments, accounting, auditing, and

14 fund disbursement.

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

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

17 under section 1801 to carry out the activities described

18 in the application submitted by an applicant under section

19 1802 upon determining that—

20 ‘‘(1) the application is consistent with the re21 quirements of this part; and

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

23 Bureau has made an affirmative finding in writing

24 that the proposed activities have been reviewed in

25 accordance with this part.
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1 ‘‘(b) APPROVAL.—Each application submitted under

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

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

4 first received unless the Director informs the applicant of

5 specific reasons for disapproval.

6 ‘‘(c) DISAPPROVAL NOTICE AND RECONSIDER7 ATION.—The Director shall not disapprove any application

8 without first affording the applicant reasonable notice and

9 opportunity for reconsideration.

10 ‘‘SEC. 1804. DISTRIBUTION OF FUNDS.

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

12 share of a grant made under this part may not exceed

13 75 percent of the total costs of the activities described in

14 the application submitted under section 1702 for the fiscal

15 year for which the project receives assistance under this

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

17 this part may not exceed 50 percent.

18 ‘‘SEC. 1805. EVALUATION.

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

20 under this part shall submit to the Director an evaluation

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

22 guidelines issued by the Director.

23 ‘‘(2) The Director may waive the requirement speci24 fied in subsection (a) if the Director determines that such
34

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1 evaluation is not warranted in the case of any particular

2 State.

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

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

5 this part to develop an evaluation program under this sec6 tion.’’.

7 (c) TECHNICAL AMENDMENT.—The table of contents

8 of title I of the Omnibus Crime Control and Safe Streets

9 Act of 1968 (42 U.S.C. 3711 et seq.), as amended by sec10 tion 103(b), is amended by striking the matter relating

11 to part R and inserting the following:

‘‘PART R—GRANTS FOR STATE CAPITAL LITIGATION

‘‘Sec. 1801. Grant authorization.

‘‘Sec. 1802. State applications.

‘‘Sec. 1803. Review of State applications.

‘‘Sec. 1804. Distribution of funds.

‘‘Sec. 1805. Evaluation.

‘‘PART S—TRANSITION; EFFECTIVE DATE; REPEALER’’

12 (d) AUTHORIZATION OF APPROPRIATIONS.—Section

13 1001(a) of title I of the Omnibus Crime Control and Safe

14 Streets Act of 1968 (42 U.S.C. 3793(a)), as amended by

15 section 103(c), is amended by adding at the end the fol16 lowing new paragraph:

17 ‘‘(12) There are authorized to be appropriated such

18 sums as are necessary to carry out activities under part

19 R.’’.
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1 SEC. 10. CERTIFICATION OF COMPLIANCE.

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

3 the Omnibus Crime Control and Safe Streets Act of 1968

4 (42 U.S.C. 501 et seq.) is amended by adding at the end

5 the following new section:

6 ‘‘CERTIFICATION OF COMPLIANCE

7 ‘‘SEC. 509A. In any application for a grant under this

8 subpart, a State in which a sentence of death may be im9 posed shall certify whether it will comply with the provi10 sions of section 2258 of title 28, United States Code. If

11 the State chooses not to certify that it will comply with

12 the provisions of that section, the amount of funds that

13 the State is eligible to receive under that subpart shall

14 be reduced by 75 percent. If the State certifies that it will

15 comply with the provisions of section 2258 of title 28,

16 United States Code, the amount of funds that the State

17 is eligible to receive under that subpart shall not be re18 duced by virtue of any failure or alleged failure to carry

19 out any of the requirements of that section. The sole en20 forcement mechanisms for the requirements set forth in

21 that section shall be those provided in that section, to

22 which the State shall be deemed to have consented by cer23 tifying that it will comply with the provisions of that sec24 tion.’’.

25 (b) TECHNICAL AMENDMENT.—The table of contents

26 of title I of the Omnibus Crime Control and Safe Streets
36

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1 Act of 1968 (42 U.S.C. preceding 3701) is amended by

2 inserting after the item relating to section 509 the follow3 ing new item:

‘‘Sec. 509A. Certification of compliance.’’.

4 SEC. 11. EFFECTIVE DATE.

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

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

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

8 of enactment of this Act.

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

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

11 as added by section 208(a), shall take effect on the date

12 of enactment of this Act.

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