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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1657 Placed on Calendar Senate (PCS)]

                                                       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

                                                       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.

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

SEC. 301. SHORT TITLE.

    This title may be cited as ``A bill to enforce the fourteenth 
amendment and to reform habeas corpus.''.

SEC. 302. FILING DEADLINES.

    (a) In General.--Section 2242 of title 28, United States Code, is 
amended--
            (1) by amending the heading to read as follows:
``Sec. 2242. Filing of habeas corpus petition; time requirements; 
              tolling rules'';
            (2) by inserting ``(a)(1)'' before the first paragraph, 
        ``(2)'' before the second paragraph, ``(3)'' before the third 
        paragraph, and ``(4)'' before the fourth paragraph;
            (3) by amending the third paragraph, as designated by 
        paragraph (3), to read as follows:
    ``(3) Leave to amend or supplement the petition shall be freely 
given, as provided in the rules of procedure applicable to civil 
actions.''; and
            (4) by adding at the end the following new subsections:
    ``(b) An application for habeas corpus relief under section 2254 
shall be filed in the appropriate district court not later than 180 
days after--
            ``(1) the last day for filing a petition for writ of 
        certiorari in the United States Supreme Court on direct appeal 
        or unitary review of the conviction and sentence, if such a 
        petition has not been filed within the time limits established 
        by law;
            ``(2) the date of the denial of a writ of certiorari, if a 
        petition for a writ of certiorari to the highest court of the 
        State on direct appeal or unitary review of the conviction and 
        sentence is filed, within the time limits established by law, 
        in the United States Supreme Court; or
            ``(3) the date of the issuance of the mandate of the United 
        States Supreme Court, if on a petition for a writ of certiorari 
        the Supreme Court grants the writ and disposes of the case in a 
        manner that leaves the sentence undisturbed.
    ``(2) The time requirements established by subsection (b) shall not 
apply unless the State has provided notice to a petitioner under 
sentence of death of the time requirements established by this section. 
Such notice shall be provided upon the final disposition of the initial 
petition for State post-conviction review.
    ``(3) In a case in which a sentence of death has been imposed, the 
time requirements established by subsection (b) shall be tolled--
            ``(A) during any period in which the State has failed to 
        appoint counsel for State post-conviction review as required in 
        section 2258;
            ``(B) during any period in which the petitioner is 
        incompetent; and
            ``(C) during an additional period, not to exceed 60 days, 
        if the petitioner makes a showing of good cause.
    ``(d)(1) Notwithstanding the filing deadline imposed by subsection 
(b), if a petitioner under a sentence other than death has filed--
            ``(A) a petition for post-conviction review in State court; 
        or
            ``(B) a request for counsel for post-conviction review,
before the expiration of the period described in subsection (b), the 
petitioner shall have 180 days to file a petition under this chapter 
upon completion of the State court review.
    ``(2) The time requirements established by subsection (b) shall not 
apply in a case in which a sentence other than death has been imposed 
unless--
            ``(A) the State has provided notice to the petitioner of 
        the time requirements established by this section and of the 
        availability of counsel as described in subparagraph (B); such 
        notice shall be provided orally at the time of sentencing and 
        in writing at the time the petitioner's conviction becomes 
        final, except that in a case in which the petitioner's 
        conviction becomes final within 30 days of sentencing, the 
        State may provide both the oral and the written notice at 
        sentencing; in all cases, the written notice to petitioner 
        shall include easily understood instructions for filing a 
        request for counsel for State post-conviction review; and
            ``(B)(i) the State provides counsel to the petitioner upon 
        the filing of a request for counsel for State post-conviction 
        review; or
            ``(ii) the State provides counsel to the petitioner, if a 
        request for counsel for State post-conviction review is not 
        filed, upon the filing of a petition for post-conviction 
        review.
    ``(3) The time requirements established by subsection (b) shall be 
tolled in a case in which a sentence other than death has been 
imposed--
            ``(A) during any period in which the petitioner is 
        incompetent; and
            ``(B) during an additional period, not to exceed 60 days, 
        if the petitioner makes a showing of good cause.
    ``(e) An application that is not filed within the time requirements 
established by subsection (b) shall be governed by section 2244(b).''.
    (b) Technical Amendment.--The chapter analysis for chapter 153 of 
title 28, United States Code is amended by amending the item relating 
to section 2242 to read as follows:

``2242. Filing of habeas corpus petition; time requirements; tolling 
                            rules.''.

SEC. 303. STAYS OF EXECUTION IN CAPITAL CASES.

    Section 2251 of title 28, United States Code, is amended--
            (1) by inserting ``(a)(1)'' before the first paragraph and 
        ``(2)'' before the second paragraph; and
            (2) by adding at the end the following new subsections:
    ``(b) In the case of a person under sentence of death, a warrant or 
order setting an execution shall be stayed upon application to any 
court that would have jurisdiction over a habeas corpus petition under 
this chapter. The stay shall be contingent upon the exercise of 
reasonable diligence by the applicant in pursuing relief with respect 
to the sentence and shall expire if--
            ``(1) the applicant fails to file for relief under this 
        chapter within the time requirements established by section 
        2242;
            ``(2) upon completion of district court and court of 
        appeals review under section 2254, the application is denied 
        and--
                    ``(A) the time for filing a petition for a writ of 
                certiorari expires before a petition is filed;
                    ``(B) a timely petition for a writ of certiorari is 
                filed and the Supreme Court denies the petition; or
                    ``(C) a timely petition for certiorari is filed 
                and, upon consideration of the case, the Supreme Court 
                disposes of it in a manner that leaves the capital 
                sentence undisturbed; or
            ``(3) before a court of competent jurisdiction, in the 
        presence of counsel, and after being advised of the 
        consequences of the decision, the applicant competently and 
        knowingly waives the right to pursue habeas corpus relief under 
        this chapter.
    ``(c) If any 1 of the conditions in subsection (b) has occurred, no 
Federal court thereafter shall have the authority to enter a stay of 
execution unless the applicant has filed a habeas corpus petition that 
satisfies, on its face, section 2244(b) or 2256. A stay granted 
pursuant to this subsection shall expire if, after the grant of the 
stay, 1 of the conditions specified in subsection (b) (2) or (3) 
occurs.''.

SEC. 304. APPLICATION OF NEW RULES; STANDARD OF REVIEW.

    (a) Retroactive Application of New Rules.--
            (1) In general.--Chapter 153 of title 28, United States 
        Code, as amended by section 306(a), is amended by adding at the 
        end the following new section:
``Sec. 2257. Law applicable
    ``In cases subject to this chapter, all claims shall be governed by 
the law as it was when the petitioner's conviction became final. A 
court considering a claim under this chapter shall consider intervening 
decisions by the Supreme Court of the United States which establish 
fundamental constitutional rights.''.
            (2) Technical amendment.--The chapter analysis for chapter 
        153 of title 28, United States Code, as amended by section 
        306(b), is amended by adding at the end the following new item:

``2257. Law applicable.''.
    (b) Standard of Review.--Section 2254(a) of title 28, United States 
Code, is amended by adding at the end the following: ``Except as to 
Fourth Amendment claims controlled by Stone v. Powell, 428 U.S. 465 
(1976), the Federal courts, in reviewing an application under this 
section, shall review de novo the rulings of a State court on matters 
of Federal law, including the application of Federal law to facts, 
regardless of whether the opportunity for a full and fair hearing on 
such Federal questions has been provided in the State court. In the 
case of a violation that can be harmless, the State shall bear the 
burden of proving harmlessness.''.

SEC. 305. LIMITS ON SUCCESSIVE PETITIONS.

    Section 2244(b) of title 28, United States Code, is amended to read 
as follows:
    ``(b)(1) A claim presented in a habeas corpus petition that was not 
timely presented in a prior petition shall be dismissed unless--
            ``(A) the petitioner shows that--
                    ``(i) the failure to raise the claim previously was 
                the result of interference by State officials with the 
                presentation of the claim, in violation of the 
                Constitution or laws of the United States;
                    ``(ii) the claim relies on a new rule that is 
                applicable under section 2257 and was previously 
                unavailable; or
                    ``(iii) the factual predicate for the claim could 
                not have been discovered previously through the 
                exercise of reasonable diligence; and
            ``(B) the facts underlying the claim, if proven and viewed 
        in light of the evidence as a whole, would be sufficient to--
                    ``(i) undermine the court's confidence in the 
                factfinder's determination of the applicant's guilt of 
                the offense or offenses for which the sentence was 
                imposed; or
                    ``(ii) demonstrate that no reasonable sentencing 
                authority would have found an aggravating circumstance 
                or other condition of eligibility for a capital or 
                noncapital sentence, or otherwise would have imposed a 
                sentence of death.
    ``(2)(A) Before a successive petition is filed in the district 
court, the petitioner must move in the appropriate court of appeals for 
an order authorizing the district court to consider the petition.
    ``(B) A motion in the court of appeals for an order authorizing the 
district court to consider a successive petition shall be determined by 
more than one judge of the court of appeals.
    ``(C) The court of appeals may authorize the filing of a successive 
petition only if it determines that the petitioner has demonstrated 
that probable cause exists to believe that the petition satisfies the 
requirements of this section.''.

SEC. 306. NEW EVIDENCE.

    (a) In General.--Chapter 153 of title 28, United States Code, as 
amended by section 304(a)(1), is amended by adding at the end the 
following new section:
``Sec.  2256. Capital cases; new evidence
    ``For purposes of this chapter, a claim arising from a violation of 
the Constitution, laws, or treaties of the United States shall include 
a claim by a person under sentence of death that is based on factual 
allegations that, if proven and viewed in light of the evidence as a 
whole, would be sufficient to demonstrate that no reasonable factfinder 
would have found the petitioner guilty of the offense or that no 
reasonable sentencing authority would have found an aggravating 
circumstance or other condition of eligibility for the sentence. Such a 
claim shall be dismissed if the facts supporting the claim were 
actually known to the petitioner during a prior stage of the litigation 
in which the claim was not raised. Notwithstanding any other provision 
of this chapter, the claim shall not be subject to section 2244(b) or 
the time requirements established by section 2242. In all other 
respects, the claim shall be subject to the rules applicable to claims 
under this chapter.''.
    (b) Technical Amendment.--The chapter analysis for chapter 153 of 
title 28, United States Code, as amended by section 304(a)(2), is 
amended by adding at the end the following new item:

``2258. Capital cases; new evidence.''.

SEC. 307. CERTIFICATES OF PROBABLE CAUSE.

    The third paragraph of section 2253 of title 28, United States 
Code, is amended by adding at the end the following: ``However, an 
applicant under sentence of death shall have a right of appeal without 
a certificate of probable cause, except after denial of a habeas corpus 
petition filed under section 2244(b).''.

SEC. 308. TIME REQUIREMENTS FOR CONSIDERATION BY DISTRICT COURTS OF 
              HABEAS CORPUS PETITIONS IN CAPITAL CASES.

    (a) In General.--Chapter 153 of title 28, United States Code, as 
amended by section 306(a), is amended by adding at the end the 
following new section:
``Sec. 2259. Time limitations for consideration by the district courts 
              habeas corpus petitions in capital cases
    ``(a) In General.--
            ``(1) Final determination within 180 days.--A district 
        court shall render a final determination of any petition for a 
        writ of habeas corpus brought under this chapter in a capital 
        case within 180 days after the date on which the petition is 
        filed.
            ``(2) Delay.--(A) A district court may delay the rendering 
        of a determination of a petition beyond 180 days if the court 
        issues a written order making finding, and stating the reasons 
        for the finding, that the ends of justice that would be served 
        by allowing the delay outweigh the best interests of public and 
        the petitioner in a speedy disposition of the petition.
            ``(B) The factors, among others, that a court shall 
        consider in determining whether a delay in disposition of a 
        petition is permissible are as follows:
                    ``(i) Whether the failure to allow the delay would 
                be likely to result in a miscarriage of justice.
                    ``(ii) Whether the case is so unusual or so 
                complex, due to the number of defendants, the nature of 
                the prosecution, or the existence of novel questions of 
                fact or law, that it is unreasonable to expect adequate 
                briefing within the time limit established by paragraph 
                (1).
                    ``(iii) Whether the failure to allow a delay in a 
                case that, taken as a whole, is not so unusual or so 
                complex as described in clause (ii), would deny the 
                petitioner reasonable time to obtain counsel, would 
                unreasonably deny the petitioner or the government 
                continuity of counsel, or would deny counsel for the 
                petitioner or the attorney for the government the 
                reasonable time necessary for effective preparation, 
                taking into account the exercise of due diligence.
            ``(C) No delay in disposition shall be permissible because 
        of general congestion of the court's calendar or lack of 
        diligent preparation on the part of the attorney for the 
        government.
            ``(D) The court shall transmit a copy of any order issued 
        under subparagraph (A) to the Director of the Administrative 
        Office of the United States Courts for inclusion in the report 
        under subsection (e).
    ``(b) Application.--The time limitations under subsection (a) shall 
apply to--
            ``(1) an initial petition for a writ of habeas corpus;
            ``(2) any second or successive petition for a writ of 
        habeas corpus; and
            ``(3) any re-determination of a petition for a writ of 
        habeas corpus following a remand by the court of appeals or the 
        Supreme Court for further proceedings, in which case the 
        limitation period shall run from the date of the remand.
    ``(c) Rule of Construction.--The time limitations under this 
section shall not be construed to entitle a petitioner to a stay of 
execution, to which the petitioner would otherwise not be entitled, for 
the purpose of litigating any petition or appeal.
    ``(d) Failure To Render Timely Determination.--
            ``(1) No ground for relief.--The failure of a court to meet 
        or comply with a time limitation under this section shall not 
        be a ground for granting relief from a judgment of conviction 
        or sentence.
            ``(2) Enforcement.--The government may enforce a time 
        limitation under this section by applying for a writ of 
        mandamus to the court of appeals.
    ``(e) Report.--
            ``(1) In general.--The Administrative Office of United 
        States Courts shall submit to Congress an annual report on the 
        compliance by the district courts with the time limitations 
        under this section.
            ``(2) Contents.--The report described in paragraph (1) 
        shall include copies of the orders submitted by the district 
        courts under subsection (a)(2)(D).''.
    (b) Technical Amendment.--The chapter analysis for chapter 153 of 
title 28, United States Code, as amended by section 308(b), is amended 
by adding at the end the following new item:

``2259. Time limitations for consideration by the district courts of 
                            petitions for habeas corpus in capital 
                            cases.''.

SEC. 309. TIME REQUIREMENTS FOR CONSIDERATION BY COURTS OF APPEALS OF 
              APPEALS OF DISTRICT COURT DETERMINATIONS OF HABEAS CORPUS 
              PETITIONS IN CAPITAL CASES.

    (a) In General.--Chapter 153 of title 28, United States Code, as 
amended by section 306(a), is amended by adding at the end the 
following new section:
``Sec. 2260. Time limitations for consideration by courts of appeals of 
              district court determinations of habeas corpus petitions 
              in capital cases
    ``(a) In General.--
            ``(1) Final determination within 120 days.--A court of 
        appeals shall hear and render a final determination of any 
        appeal of an order granting or denying, in whole or in part, a 
        petition brought under this chapter in a capital case within 
        120 days after the date on which the notice of appeal is filed.
            ``(2) Hearing en banc.--(A) A court of appeals shall decide 
        whether to grant a petition for rehearing en banc within 20 
        days after the date on which the petition for rehearing is 
        filed unless a responsive pleading is required, in which case 
        the court shall decide whether to grant the petition within 20 
        days after the date on which the responsive pleading is filed.
            ``(B) If a petition for rehearing is granted, the court of 
        appeals shall hear and render a final determination of the 
        appeal within 120 days after the date on which the order 
        granting rehearing is entered.
    ``(b) Application.--The time limitations under subsection (a) shall 
apply to--
            ``(1) an initial petition for a writ of habeas corpus;
            ``(2) any second or successive petition for a writ of 
        habeas corpus; and
            ``(3) any re-determination of a petition for a writ of 
        habeas corpus or related appeal following a remand by the court 
        of appeals or the Supreme Court for further proceedings, in 
        which case the limitation period shall run from the date of the 
        remand.
    ``(c) Rule of Construction.--The time limitations under this 
section shall not be construed to entitle a petitioner to a stay of 
execution, to which the petitioner would otherwise not be entitled, for 
the purpose of litigating any petition or appeal.
    ``(d) Failure To Render Timely Determination.--
            ``(1) No ground for relief.--The failure of a court to meet 
        or comply with a time limitation under this section shall not 
        be a ground for granting relief from a judgment of conviction 
        or sentence.
            ``(2) Enforcement.--The government may enforce a time 
        limitation under this section by applying for a writ of 
        mandamus to the Supreme Court.
    ``(e) Report.--The Administrative Office of United States Courts 
shall submit to Congress an annual report on the compliance by the 
courts of appeals with the time limitations under this section.''.
    (b) Technical Amendment.--The chapter analysis for chapter 153 of 
title 28, United States Code, as amended by section 306(b), is amended 
by adding at the end 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.''.

SEC. 310. ABOLITION OF EXHAUSTION OF COLLATERAL REMEDIES REQUIREMENT IN 
              CAPITAL CASES.

    Section 2254(b) of title 28, United States Code is amended to read 
as follows:
    ``(b)(1) Except in a capital case, an application for a writ of 
habeas corpus in behalf of a person in custody pursuant to the judgment 
of a State court shall not be granted unless it appears that the 
applicant has exhausted the remedies available in the courts of the 
State (including opportunities to petition the Supreme Court for 
certiorari review on direct appeal and any available collateral review 
in the State courts), or that there is either an absence of available 
State corrective process or the existence of circumstances rendering 
such process ineffective to protect the rights of the prisoner.
    ``(2) In a capital case, an application for a writ of habeas corpus 
in behalf of a person in custody pursuant to the judgment of a State 
court shall not be granted unless it appears that the applicant has 
exhausted the remedies available in the courts of the State (including 
opportunities to petition the Supreme Court for certiorari review on 
direct appeal but not including any available collateral review in the 
State courts), or that there is either an absence of available State 
corrective proceeds or the existence of circumstances rendering such 
process ineffective to protect the rights of the prisoner.''.

SEC. 311. PROVISION OF COUNSEL.

    (a) In General.--Chapter 153 of title 28, United States Code, as 
amended by section 304(a)(1), is amended by adding at the end the 
following new section:
``Sec. 2258. Counsel in capital cases; State court
    ``(a) Finding and Declaration.--The Congress finds that inadequate 
representation in State capital trials, appeals and post-conviction 
proceedings increases unacceptably the risk of constitutional and 
factual error. The possibility of such errors puts into question the 
validity of individual convictions and the conformity of State criminal 
justice systems with the commands of the Due Process Clause of the 
Fourteenth Amendment. The Congress therefore determines that the 
following requirements are a necessary and appropriate means, pursuant 
to its authority under section 5 of that Amendment, of enforcing the 
Due Process Clause.
    ``(b) Counsel.--(1) A State in which a sentence of death may be 
imposed under State law shall provide legal services to--
            ``(A) indigents charged with offenses for which capital 
        punishment is sought;
            ``(B) indigents who have been sentenced to death and who 
        seek appellate, post-conviction, or unitary review in State 
        court; and
            ``(C) indigents who have been sentenced to death and who 
        seek certiorari review of State court judgments in the United 
        States Supreme Court.
    ``(2) This section shall not apply or form a basis for relief to 
nonindigents.
    ``(c) Counsel Certification Authority.--A State in which a sentence 
of death may be imposed under State law shall, within 180 days after 
the date of enactment of this subsection, establish a State counsel 
certification authority, which shall be comprised of members of the bar 
with substantial experience in, or commitment to, the representation of 
criminal defendants in capital cases, and shall be comprised of a 
balanced representation from each segment of the State's criminal 
defense bar, such as a statewide defender organization, a capital case 
resource center, local public defender's offices and private attorneys 
involved in criminal trial, appellate, post-conviction, or unitary 
review practice. If a State fails to establish a counsel certification 
authority within 180 days after the date of enactment of this 
subsection, a private cause of action may be brought in Federal 
district court to enforce this subsection by any aggrieved party, 
including a defendant eligible for appointed representation under this 
subsection or a member of an organization eligible for representation 
on the counsel certification authority. If the court finds that the 
State has failed to establish a counsel certification authority as 
required by this subsection, the court shall grant appropriate 
injunctive and declaratory relief, except that the court shall not 
grant relief that disturbs any criminal conviction or sentence, 
obstructs the prosecution of State criminal proceedings, or alters 
proceedings arising under this chapter.
    ``(d) Duties of Authority; Certification of Counsel.--The counsel 
certification authority shall--
            ``(1) establish and publish standards governing 
        qualifications of counsel, which shall include--
                    ``(A) knowledge and understanding of pertinent 
                legal authorities regarding issues in capital cases;
                    ``(B) skills in the conduct of negotiations and 
                litigation in capital cases, the investigation of 
                capital cases and the psychiatric history and current 
                condition of capital clients, and the preparation and 
                writing of legal papers in capital cases;
                    ``(C) the minimum qualifications required by 
                subsection (e); and
                    ``(D) any additional qualifications relevant to the 
                representation of capital defendants;
            ``(2) establish application and certification procedures 
        for attorneys who possess the qualifications established 
        pursuant to paragraph (1);
            ``(3) establish application and certification procedures 
        for attorneys who do not possess all the qualifications 
        established pursuant to paragraph (1) but who possess, in 
        addition to the minimum qualifications required by subsection 
        (e), additional resources (such as an affiliation with a 
        publicly funded defender organization) and experience that 
        enable them to provide quality legal representation comparable 
        to that of an attorney possessing the qualifications 
        established pursuant to paragraph (1);
            ``(4) establish application and certification procedures, 
        to be used on a case by case basis, for attorneys who do not 
        necessarily possess the minimum qualifications required by 
        subsection (e), but who possess other extraordinary experience 
        and resources that enable them to provide quality legal 
        representation comparable to that of an attorney possessing the 
        qualifications established pursuant to paragraph (1);
            ``(5) publish a current roster of attorneys certified 
        pursuant to paragraphs (2) and (3) to be appointed in capital 
        cases;
            ``(6) establish and publish standards governing the 
        performance of counsel in capital cases, including standards 
        that proscribe abusive practices and mandate sound practices in 
        order to further the fair and orderly administration of 
        justice;
            ``(7) monitor the performance of attorneys certified 
        pursuant to this subsection; and
            ``(8) delete from the roster the name of any attorney who 
        fails to meet the qualification or performance standards 
        established pursuant to this subsection.
    ``(e) Minimum Counsel Standards.--All counsel certified pursuant to 
paragraph (2) or (3) of subsection (d) or appointed pursuant to 
subsection (f) shall possess, in addition to any qualifications 
required by State or local law, the following minimum qualifications:
            ``(1) familiarity with the performance standards 
        established by the counsel certification authority;
            ``(2) familiarity with the appropriate court system, 
        including the procedural rules regarding timeliness of filings 
        and procedural default; and
            ``(3) in the case of counsel appointed for the trial or 
        sentencing stages, at least 2 of the qualifications listed in 
        subparagraph (A) and 1 of the qualifications listed in 
        subparagraph (B), or 1 of the alternative qualifications listed 
        in subparagraph (C):
                    ``(A) Qualifying trial experience (must have 2).--
                Prior experience within the last 10 years as--
                            ``(i) lead or sole counsel in 12 jury 
                        trials, of which no fewer than 5 were criminal 
                        jury trials;
                            ``(ii) lead or sole counsel in 3 criminal 
                        jury trials in which the charge was murder or 
                        aggravated murder;
                            ``(iii) co-counsel in 5 criminal jury 
                        trials in which the charge was murder or 
                        aggravated murder;
                            ``(iv) lead or sole counsel in no fewer 
                        than 5 criminal jury trials involving crimes of 
                        violence against persons, punishable by 
                        imprisonment of over 1 year,
                which were tried to a verdict or to a deadlocked jury.
                    ``(B) Qualifying capital trial experience (must 
                have 1).--
                            ``(i) lead or sole counsel within the last 
                        5 years in the trial of at least 1 capital case 
                        that was tried through sentencing;
                            ``(ii) co-counsel in the trial of no fewer 
                        than 2 capital cases (1 of which occurred 
                        within the last 5 years) that were tried 
                        through sentencing;
                            ``(iii) successful completion within the 
                        preceding 2 years of a training program in 
                        capital trial litigation that has been 
                        certified by the counsel certification 
                        authority or, if the authority has not 
                        certified a program, successful completion of 
                        an at least 12-hour training program in capital 
                        trial litigation for which continuing legal 
                        education (CLE) credit is available, and which 
                        the CLE authority in the State has certified as 
                        comporting with the objectives and requirements 
                        of this section.
                    ``(C) Alternative qualifying experience for 
                trial.--Notwithstanding subparagraphs (A) and (B), an 
                attorney shall be eligible for certification pursuant 
                to paragraph (2) or (3) of subsection (d) or 
                appointment pursuant to subsection (g) if the 
                attorney--
                            ``(i) has conducted 5 evidentiary hearings 
                        and has been employed for more than 1 year by a 
                        capital resource center, a unit or its 
                        equivalent that specializes in capital cases 
                        within a public defender office, or a public 
                        interest law office specializing in capital 
                        litigation; or
                            ``(ii) has been certified by the State 
                        capital litigation resource center as competent 
                        to be assigned to a capital trial;
            ``(4) in the case of counsel appointed for appellate or 
        unitary review, at least 1 of the qualifications listed in 
        subparagraph (A) and 1 of the qualifications listed in 
        subparagraph (B), or 1 of the alternative qualifications listed 
        in subparagraph (C):
                    ``(A) Qualifying appellate experience (must have 
                1).--Prior experience within the past 5 years as--
                            ``(i) lead or sole counsel in no fewer than 
                        10 appeals, of which no fewer than 5 were 
                        criminal appeals;
                            ``(ii) lead or sole counsel in at least 6 
                        criminal felony appeals;
                            ``(iii) lead or sole counsel in 3 criminal 
                        or felony appeals, at least 1 of which was an 
                        appeal of a murder or aggravated murder 
                        conviction,
                which were fully briefed.
                    ``(B) Qualifying capital appellate experience (must 
                have 1).--
                            ``(i) lead or sole counsel within the last 
                        5 years in the appeal or unitary review of at 
                        least 1 capital case;
                            ``(ii) co-counsel in the appeal or unitary 
                        review of no fewer than 2 capital cases, 1 of 
                        which occurred within the last 5 years;
                            ``(iii) successful completion within the 
                        preceding 2 years of a training program in the 
                        litigation of capital appeals that has been 
                        certified by the counsel certification 
                        authority or, if the authority has not 
                        certified a program, successful completion of 
                        an at least 12-hour training program in capital 
                        litigation with a focus on appeals for which 
                        continuing legal education (CLE) credit is 
                        available, and which the CLE authority in the 
                        State has certified as comporting with the 
                        objectives and the requirements of this 
                        section.
                    ``(C) Alternative qualifying experience for 
                appeals.--Notwithstanding subparagraphs (A) and (B), an 
                attorney shall be eligible for certification pursuant 
                to paragraph (2) or (3) of subsection (c) or for 
                appointment pursuant to subsection (f) if the 
                attorney--
                            ``(i) has been employed for more than 1 
                        year by a capital resource center, a unit or 
                        its equivalent that specializes in capital 
                        cases within a public defender office, or a 
                        public interest law office specializing in 
                        capital litigation; or
                            ``(ii) has been certified by the State 
                        capital litigation resource center as competent 
                        to be assigned to a capital appeal; and
            ``(5) in the case of counsel appointed for post-conviction 
        proceedings, at least 2 of the qualifications listed in 
        subparagraph (A) and at least 1 of the qualifications listed in 
        subparagraph (B), or 1 of the alternative qualifications listed 
        in subparagraph (C):
                    ``(A) Qualifying post-conviction experience (must 
                have 2).--Prior experience within the past 10 years 
                as--
                            ``(i) lead or sole counsel in no fewer than 
                        3 post-conviction proceedings;
                            ``(ii) co-counsel in no fewer than 5 post-
                        conviction proceedings;
                            ``(iii) 1 of the trial qualifications 
                        listed in paragraph (3)(A);
                            ``(iv) 1 of the appellate qualifications 
                        listed in paragraph (4)(A).
                    ``(B) Qualifying capital post-conviction experience 
                (must have 1).--
                            ``(i) lead or sole counsel within the last 
                        5 years in the trial (through sentencing), 
                        appeal, or post-conviction review of at least 1 
                        capital case;
                            ``(ii) co-counsel in the trial (through 
                        sentencing), appeal, or post-conviction review 
                        of no fewer than 2 capital cases, 1 of which 
                        occurred within the last 5 years;
                            ``(iii) successful completion during the 
                        preceding 2 years of a training program in the 
                        litigation of capital post-conviction 
                        proceedings that has been certified by the 
                        counsel certification authority or, if the 
                        authority has not certified a program, 
                        successful completion of an at least 12-hour 
                        training program in capital litigation with a 
                        focus on post-conviction proceedings for which 
                        continuing legal education (CLE) credit is 
                        available, and which the CLE authority in the 
                        State has certified as comporting with the 
                        objectives and requirements of this section.
                    ``(C) Alternative qualifying experience for post-
                conviction proceedings.--Notwithstanding subparagraphs 
                (A) and (B), an attorney shall be eligible for 
                certification pursuant to paragraph (2) or (3) of 
                subsection (d) or appointment pursuant to subsection 
                (g) if the attorney--
                            ``(i) has conducted 3 evidentiary hearings 
                        and has been employed for more than 1 year by a 
                        capital litigation resource center, by a unit 
                        or its equivalent that specializes in capital 
                        cases within a public defender office, or by a 
                        public interest law office specializing in 
                        capital litigation; or
                            ``(ii) has been certified by the State 
                        capital litigation resource center as competent 
                        to be assigned to a capital post-conviction 
                        proceeding.
    ``(f) Appointment of Certified Counsel.--(1) The State court shall 
appoint at least 2 attorneys to represent an indigent at trial, and at 
least 1 attorney to represent an indigent at the appellate, unitary or 
post-conviction review stage, including--
            ``(A) a lead counsel who is named on the roster published 
        pursuant to subsection (d)(5);
            ``(B) a defender organization or resource center, which 
        shall designate appropriate attorneys affiliated with the 
        organization, including a lead counsel who is named on the 
        roster; or
            ``(C) a lead counsel certified pursuant to subsection 
        (d)(4).
    ``(2) The State court may appoint additional attorneys upon a 
showing of need.
    ``(g) Appointment of Noncertified Counsel.--(1) If there is no 
roster of attorneys published pursuant to subsection (d)(5), or if no 
attorney on the roster can accept the appointment and if no attorney 
certified pursuant to subsection (d)(4) has been appointed, the State 
court shall appoint at least 2 attorneys to represent an indigent at 
trial, and at least 1 attorney to represent an indigent at the 
appellate, unitary or post-conviction review stage, including--
            ``(A) a lead counsel who possesses the minimum 
        qualifications required by subsection (e); or
            ``(B) a defender organization or resource center, which 
        shall designate appropriate attorneys affiliated with the 
        organization, including a lead counsel who possesses the 
        qualifications required by subsection (e).
    ``(2) No attorney shall be appointed pursuant to this subsection 
unless the State court has first conducted an evidentiary hearing on 
the record in which the court determines, after the attorney gives 
sworn testimony and presents documentary proof that the attorney 
possesses each of the qualifications required by subsection (e), that 
the attorney possesses the requisite qualifications. In making its 
determination, the court shall, as to each qualification required by 
subsection (e), make a specific finding on the record that the attorney 
possesses the qualification.
    ``(h) No attorney may be denied certification pursuant to paragraph 
(2) or (3) of subsection (d) or appointment pursuant to subsection (g) 
solely because of prior employment as a prosecutor.
    ``(i) Prior to appointing counsel pursuant to this section, the 
State court shall inquire as to whether counsel maintains a workload 
which, by reason of its excessive size, will interfere with the 
rendering of quality representation or create a substantial risk of a 
breach of professional obligations.
    ``(j) If a person entitled to an appointment of counsel declines to 
accept an appointment, the State court shall conduct, or cause to be 
conducted, a hearing, at which the person and counsel proposed to be 
appointed shall be present, to determine the person's competence to 
decline the appointment, and whether the person has competently and 
knowingly declined it.
    ``(k) If a State court fails to appoint counsel in a proceeding 
specified in subsection (b), or if a State court in a proceeding 
described in subsection (b)--
            ``(1) fails to appoint the number of counsel required in 
        subsection (f);
            ``(2) appoints counsel whose name is not on the roster 
        published pursuant to subsection (d)(5);
            ``(3) appoints counsel who has failed to present a 
        certification issued pursuant to subsection (d)(4); or
            ``(4) when subsection (g) applies, fails to hold the 
        hearing, receive the requisite testimony and proof, or make the 
        determination required by subsection (g),
 a Federal court, in a proceeding under this chapter, shall neither 
presume findings of fact made at such proceeding to be correct nor 
decline to consider a claim on the ground that it was not raised in 
such proceeding at the time or in the manner prescribed by State law. 
In no circumstances other than those described in this subsection shall 
a determination of noncompliance with this section provide a basis for 
relief to a petitioner proceeding under this chapter.
    ``(l) No attorney appointed to represent a prisoner in State post-
conviction proceedings shall have previously represented the prisoner 
at trial or on direct appeal in the case for which the appointment is 
made, unless the prisoner and attorney expressly request continued 
representation.
    ``(m) Notwithstanding the rates and maximum limits generally 
applicable to criminal cases and any other provision of law to the 
contrary, the highest State court with jurisdiction over criminal cases 
shall, after notice and comment, establish a schedule of hourly rates 
for the compensation of attorneys appointed pursuant to this section 
that are reasonable in light of the qualifications of attorneys 
appointed and the local practices for legal representation in cases 
reflecting the complexity and responsibility of capital cases. For each 
attorney appointed pursuant to this section, the State court shall 
separately order compensation at the rates set by the highest State 
court for the hours the attorneys reasonably expended on the case and 
for reasonable expenses paid for investigative, expert, and other 
reasonably necessary services. Any aggrieved party may bring a private 
cause of action in Federal district court to enforce the provisions of 
this subsection for the establishment of a schedule of reasonable 
hourly rates for the compensation of attorneys. In such an action, the 
Federal court shall not independently determine the appropriate rates, 
but shall decide whether the hourly rates as scheduled by the State 
court are within the range of reasonableness consistent with the 
criteria stated in this subsection. If the hourly rates as scheduled 
are not within the range of reasonableness, or if no schedule of rates 
has been established, the court shall grant appropriate injunctive or 
declaratory relief, except that the court shall not grant relief that 
disturbs any criminal conviction or sentence, obstructs the prosecution 
of State criminal proceedings, or alters proceedings arising under this 
chapter.
    ``(n) The ineffectiveness or incompetence of counsel appointed 
pursuant to this section during State or Federal post-conviction 
proceedings shall not be a ground for relief in a proceeding arising 
under section 2254. This limitation shall not preclude the appointment 
of different counsel at any phase of State or Federal post-conviction 
proceedings.
    ``(o) Nothing in this section changes the constitutional standard 
governing claims of ineffective assistance of counsel pursuant to the 
sixth amendment to the Constitution of the United States. A 
determination of noncompliance with this section (as opposed to the 
facts which support such a determination) shall not provide a basis for 
a claim of constitutionally ineffective assistance of counsel.
    ``(p) The requirements of this section shall apply to any 
appointment of counsel made after the effective date of this section in 
any trial, direct appeal, or unitary review of a capital indigent. 
Counsel shall be appointed as provided in this section in any post-
conviction proceeding commenced after the effective date of this 
section. In no case shall counsel appointed for a proceeding commenced 
before the effective date of this section be subject to the 
requirements of this section, nor shall any person whose counsel was 
appointed for any trial, appeal, post-conviction or unitary review 
before the effective date of this section be entitled to any relief, 
including application of subsection (k), based on a claim that counsel 
was not appointed in conformity with subsection (f) or (g).''.
    (b) Technical Amendment.--The chapter analysis for chapter 153 of 
title 28, United States Code, as amended by section 304(a)(2), is 
amended by adding at the end the following new item:

``2258. Counsel in capital cases; State court.''.

SEC. 312. CAPITAL LITIGATION FUNDING.

    (a) Grants for Capital Habeas Corpus Prosecutions.--
            (1) In general.--Subpart 2 of part E of title I of the 
        Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
        3711 et seq.) is amended by adding at the end the following new 
        section:

                       ``habeas corpus litigation

    ``Sec. 511A. Notwithstanding any other provision of this title, the 
Director shall provide grants to the States, from the funding allocated 
pursuant to section 511, for the purpose of supporting litigation 
pertaining to Federal habeas corpus petitions in capital cases. The 
total funding authorized for such grants within any fiscal year shall 
be equal to the funding provided to capital resource centers, pursuant 
to Federal appropriation, in the same fiscal year.''.
            (2) Technical amendment.--The table of contents of title I 
        of the Omnibus Crime Control and Safe Streets Act of 1968 (42 
        U.S.C. preceding 3701) is amended by inserting after the item 
        relating to section 511 the following new item:

``Sec. 511A. Habeas corpus litigation.''.
    (b) Grants for State Capital Litigation.--
            (1) In general.--Title I of the Omnibus Crime Control and 
        Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.), as amended 
        by section 103(a) is amended--
                    (A) by redesignating part R as part S;
                    (B) by redesignating section 1801 as section 1901; 
                and
                    (C) by inserting after part Q the following new 
                part:

             ``PART R--GRANTS FOR STATE CAPITAL LITIGATION

``SEC. 1801. GRANT AUTHORIZATION.

    ``The Director of the Bureau of Justice Assistance shall make 
grants to States from amounts appropriated to carry out this part for 
the use by States and by local entities in the States to comply with 
section 2258 of title 28, United States Code.

``SEC. 1802. STATE APPLICATIONS.

    ``(a) In General.--(1) To request a grant under this part, the 
Chief Executive of a State shall submit an application to the Director 
in such form and containing such information as the Director may 
reasonably require.
    ``(2) An application under paragraph (1) shall include assurances 
that Federal funds received under this part shall be used to 
supplement, not supplant, non-Federal funds that would otherwise be 
available for activities funded under this part.
    ``(b) State Office.--The office designated under section 507--
            ``(1) shall prepare an application under this section; and
            ``(2) shall administer grant funds received under this 
        part, including review of spending, processing, progress, 
        financial reporting, technical assistance, grant adjustments, 
        accounting, auditing, and fund disbursement.

``SEC. 1803. REVIEW OF STATE APPLICATIONS.

    ``(a) In General.--The Director shall make a grant under section 
1801 to carry out the activities described in the application submitted 
by an applicant under section 1802 upon determining that--
            ``(1) the application is consistent with the requirements 
        of this part; and
            ``(2) before the approval of the application, the Bureau 
        has made an affirmative finding in writing that the proposed 
        activities have been reviewed in accordance with this part.
    ``(b) Approval.--Each application submitted under section 1802 
shall be considered to be approved, in whole or in part, by the 
Director not later than 45 days after first received unless the 
Director informs the applicant of specific reasons for disapproval.
    ``(c) Disapproval Notice and Reconsideration.--The Director shall 
not disapprove any application without first affording the applicant 
reasonable notice and opportunity for reconsideration.

``SEC. 1804. DISTRIBUTION OF FUNDS.

    ``For fiscal years 1994, 1995, and 1996, the Federal share of a 
grant made under this part may not exceed 75 percent of the total costs 
of the activities described in the application submitted under section 
1702 for the fiscal year for which the project receives assistance 
under this part. Thereafter, the Federal share of a grant made under 
this part may not exceed 50 percent.

``SEC. 1805. EVALUATION.

    ``(a) In General.--(1) A State that receives a grant under this 
part shall submit to the Director an evaluation not later than March 1 
of each year in accordance with guidelines issued by the Director.
    ``(2) The Director may waive the requirement specified in 
subsection (a) if the Director determines that such evaluation is not 
warranted in the case of any particular State.
    ``(b) Distribution.--A State or local entity may use not more than 
5 percent of the funds it receives under this part to develop an 
evaluation program under this section.''.
            (2) Technical amendment.--The table of contents of title I 
        of the Omnibus Crime Control and Safe Streets Act of 1968 (42 
        U.S.C. 3711 et seq.), as amended by section 103(b), is amended 
        by striking the matter relating 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

``Sec. 1901. Confirmation of rules, authorities, and proceedings.''.
            (3) Authorization of appropriations.--Section 1001(a) of 
        title I of the Omnibus Crime Control and Safe Streets Act of 
        1968 (42 U.S.C. 3793(a)), as amended by section 103(c), is 
        amended--
                    (A) in paragraph (3) by striking ``and Q'' and 
                inserting ``Q, and R''; and
                    (B) by adding at the end the following new 
                paragraph:
    ``(12) There are authorized to be appropriated $50 million for each 
of fiscal years 1995, 1996, and 1997 to carry out activities under part 
R.''.

SEC. 313. ABROGATION OF STATE SOVEREIGN IMMUNITY.

    Any State, any instrumentality of a State, and any officer or 
employee of a State or instrumentality of a State acting in an official 
capacity, shall not be immune, under the Eleventh Amendment to the 
Constitution of the United States, from suit in Federal court for a 
violation of subsection 2258(c) or (m) of title 28, United States Code, 
as added by section 308(a).

SEC. 314. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), this title 
and the amendments made by this title shall take effect on the date 
that is 180 days after the date of enactment of this Act.
    (b) Section 2258(b) of Title 28, United States Code.--Section 
2258(b) of title 28, United States Code, as added by section 308(a), 
shall take effect on the date of enactment of this Act.
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