II

103D CONGRESS

1ST SESSION S. 246

To provide expedited procedures for the consideration of habeas corpus

petitions in capital cases.

IN THE SENATE OF THE UNITED STATES

JANUARY 27 (legislative day, JANUARY 5), 1993

Mr. SPECTER introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To provide expedited procedures for the consideration of

habeas corpus petitions in capital cases.

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

3 SECTION 1. SPECIAL HABEAS CORPUS PROCEDURES IN

4 CAPITAL CASES.

5 (a) IN GENERAL.—Part IV of title 28, United States

6 Code, is amended by inserting immediately following chap7 ter 153 the following new chapter:
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1 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

2 PROCEDURES IN CAPITAL CASES

‘‘Sec.

‘‘2261. Defendants subject to capital punishment and prisoners in State custody

subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment.

‘‘2262. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.

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

‘‘2264. Evidentiary hearings; scope of Federal review; district court adjudication.

‘‘2265. Certificate of probable cause inapplicable.

‘‘2266. Counsel in capital cases; trial and post-conviction standards.

‘‘2267. Law controlling in Federal habeas corpus proceedings; retroactivity.

‘‘2268. Habeas corpus time requirements.

3 ‘‘§ 2261. Defendants subject to capital punishment

4 and prisoners in State custody subject to

5 capital sentence; appointment of counsel;

6 requirement of rule of court or statute;

7 procedures for appointment

8 ‘‘(a) This chapter shall apply—

9 ‘‘(1) to—

10 ‘‘(A) cases in which the defendant is tried

11 for a capital offense; or

12 ‘‘(B) cases arising under section 2254 of

13 this title brought by prisoners in State custody

14 who are subject to a capital sentence; and

15 ‘‘(2) only if subsections (b) and (c) are satis16 fied.

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

18 by rule of its court of last resort or by statute a mecha19 nism for the appointment, compensation, and payment of
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1 reasonable fees and litigation expenses of competent coun2 sel consistent with section 2266 of this title.

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

6 for a capital offense and all State prisoners under capital

7 sentence and must provide for the entry of an order by

8 a court of record—

9 ‘‘(1) appointing one or more counsel to rep10 resent the defendant or prisoner upon a finding that

11 the defendant or prisoner—

12 ‘‘(A) is indigent and has accepted the

13 offer; or

14 ‘‘(B) is unable competently to decide

15 whether to accept or reject the offer;

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

17 the defendant or prisoner has rejected the offer of

18 counsel and made the decision with an understand19 ing of its legal consequences; or

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

21 a finding that the defendant or prisoner is not indi22 gent.

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

24 (b) and (c) to represent—
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1 ‘‘(1) a State defendant being tried for a capital

2 offense; or

3 ‘‘(2) prisoner under capital sentence during di4 rect appeals in the State courts,

5 shall have previously represented the defendant or pris6 oner at trial or on direct appeal in the case for which the

7 appointment is made unless the defendant or prisoner and

8 counsel expressly request continued representation.

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

10 during State or Federal collateral post-conviction proceed11 ings in a capital case shall not be a ground for relief in

12 a proceeding arising under this chapter. This subsection

13 shall not preclude the appointment of different counsel at

14 any phase of Federal post-conviction proceedings.

15 ‘‘§ 2262. Mandatory stay of execution; duration; limits

16 on stays of execution; successive peti17 tions

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

19 of record of an order pursuant to section 2261(c) of this

20 title for a prisoner under capital sentence, a warrant or

21 order setting an execution date for a State prisoner shall

22 be stayed upon application to any court that would have

23 jurisdiction over any proceedings filed pursuant to this

24 chapter. The application must recite that the State has
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1 invoked the procedures of this chapter and that the sched2 uled execution is subject to stay.

3 ‘‘(b) A stay of execution granted pursuant to sub4 section (a) shall expire if—

5 ‘‘(1) a State prisoner fails to file a habeas cor6 pus petition under this chapter within the time re7 quired in section 2263 of this title; or

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

9 of appeals review under this chapter, the petition for

10 relief is denied and—

11 ‘‘(A) the time for filing a petition for cer12 tiorari has expired and no petition has been

13 filed;

14 ‘‘(B) a timely petition for certiorari was

15 filed and the Supreme Court denied the peti16 tion; or

17 ‘‘(C) a timely petition for certiorari was

18 filed and upon consideration of the case, the

19 Supreme Court disposed of it in a manner that

20 left the capital sentence undisturbed; or

21 ‘‘(3) before a court of competent jurisdiction, a

22 State prisoner under capital sentence waives the

23 right to pursue habeas corpus review under section

24 2254 of this title, in the presence of counsel and
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1 after having been advised of the consequences of

2 making the waiver.

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

4 occurred, no Federal court thereafter shall have the au5 thority to enter a stay of execution or grant relief in a

6 capital case unless—

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

8 is a claim not previously presented in the State or

9 Federal courts;

10 ‘‘(2) the failure to raise the claim—

11 ‘‘(A) was the result of State action in vio12 lation of the Constitution or laws of the United

13 States;

14 ‘‘(B) was the result of a recognition by the

15 Supreme Court of a new fundamental right that

16 is retroactively applicable; or

17 ‘‘(C) is due to the fact the claim is based

18 on facts that could not have been discovered

19 through the exercise of reasonable diligence in

20 time to present the claim for State or Federal

21 post-conviction review; and

22 ‘‘(3) the filing of any successive petition for a

23 writ of habeas corpus is authorized by the appro24 priate court of appeals in accordance with section

25 2264(c) and the facts underlying the claim would be
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1 sufficient, if proved, to undermine the court’s con2 fidence in the jury’s determination of guilt on the of3 fense or offenses for which the death penalty was

4 imposed or newly discovered facts which are not

5 based upon or include opinion evidence, expert or

6 otherwise, which would be sufficient to undermine

7 the court’s confidence in the validity of the death

8 sentence.

9 ‘‘§ 2263. Filing of habeas corpus petition; time re10 quirements; tolling rules

11 ‘‘(a) Any petition filed under this chapter for habeas

12 corpus relief must be filed in the appropriate district court

13 not later than 60 days after the filing in the appropriate

14 State court of record of an order issued in compliance with

15 section 2261(c) of this title. The time requirements estab16 lished by this section shall be tolled—

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

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

19 disposition of the petition if a State prisoner seeks

20 review of a capital sentence that has been affirmed

21 on direct appeal by the court of last resort of the

22 State or has otherwise become final for State law

23 purposes; and

24 ‘‘(2) during an additional period not to exceed

25 60 days, if counsel for the State prisoner—
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1 ‘‘(A) moves for an extension of time in

2 Federal district court that would have jurisdic3 tion over the case upon the filing of a habeas

4 corpus petition under section 2254 of this title;

5 and

6 ‘‘(B) makes a showing of good cause for

7 counsel’s inability to file the habeas corpus peti8 tion within the 60-day period established by

9 this section. A court that finds that good cause

10 has been shown shall explain in writing the

11 basis for such a finding.

12 ‘‘(b) A notice of appeal from a judgment of the dis13 trict court in a claim under this chapter shall be filed with14 in 20 days of the entry of judgment.

15 ‘‘(c) A petition for a writ of certiorari to the Supreme

16 Court of the United States in a claim under this chapter

17 shall be filed within 20 days of the issuance of the man18 date by the court of appeals.

19 ‘‘§ 2264. Evidentiary hearings; scope of Federal re20 view; district court adjudication

21 ‘‘(a) Whenever a State prisoner under a capital sen22 tence files a petition for habeas corpus relief to which this

23 chapter applies, the district court—

24 ‘‘(1) shall determine the sufficiency of the evi25 dentiary record for habeas corpus review; and
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1 ‘‘(2) may conduct an evidentiary hearing when

2 the court, in its discretion, determines that such

3 hearing is necessary to complete the record for ha4 beas corpus review.

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

6 record, the district court shall rule on the merits of the

7 claims properly before it within the time limits established

8 in section 2268 of this title.

9 ‘‘(c)(1) Except as provided in paragraph (2), a dis10 trict court may not consider a successive claim under this

11 chapter.

12 ‘‘(2) A district court may only consider a successive

13 claim under this chapter if the petitioner seeks leave to

14 file a successive petition in the appropriate court of ap15 peals.

16 ‘‘(3) In a case in which the appropriate court of ap17 peals grants leave to file a successive petition, the time

18 limits established by this chapter shall be applicable to all

19 further proceedings under the successive petition.

20 ‘‘§ 2265. Certificate of probable cause inapplicable

21 ‘‘The requirement of a certificate of probable cause

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

23 appeals does not apply to habeas corpus cases subject to

24 this chapter.
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1 ‘‘§ 2266. Counsel in capital cases; trial and post-con2 viction standards

3 ‘‘(a) A mechanism for the provision of counsel serv4 ices to indigents sufficient to invoke the provisions of this

5 chapter shall—

6 ‘‘(1) provide for counsel to indigents charged

7 with offenses for which capital punishment is

8 sought, to indigents who have been sentenced to

9 death and who seek appellate or collateral review in

10 State court, and to indigents who have been sen11 tenced to death and who seek certiorari review in the

12 United States Supreme Court; collateral review in

13 State court, and to indigents who have been sen14 tenced to death and who seek certiorari review in the

15 United States Supreme Court; and

16 ‘‘(2) provide for the entry of an order of a court

17 of record appointing one or more counsel to rep18 resent the prisoner except upon a judicial determina19 tion (after a hearing, if necessary) that (A) the pris20 oner is not indigent; or (B) the prisoner knowingly

21 and intelligently waives the appointment of counsel.

22 ‘‘(b)(1) Except as provided below, at least one attor23 ney appointed pursuant to this chapter before trial, if ap24 plicable, and at least one attorney appointed pursuant to

25 this chapter after trial, if applicable, shall have been cer26 tified by a statewide certification authority. The States
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1 may elect to create one or more certification authorities

2 (but not more than three such certification authorities)

3 to perform the responsibilities set forth below. The certifi4 cation authority for counsel at any stage of a capital case

5 shall be—

6 ‘‘(i) a special committee, constituted by the

7 State court of last resort or by State law, relying on

8 staff attorneys of a defender organization, members

9 of the private bar, or both; or

10 ‘‘(ii) a capital litigation resource center, relying

11 on staff attorneys, members of the private bar, or

12 both; or

13 ‘‘(iii) a statewide defender organization, relying

14 on staff attorneys, members of the private bar, or

15 both.

16 The certification authority shall—

17 ‘‘(iv) certify attorneys qualified to represent

18 persons charged with capital offenses or sentenced to

19 death; and

20 ‘‘(v) draft and annually publish procedures and

21 standards by which attorneys are certified and ros22 ters of certified attorneys; and

23 ‘‘(vi) periodically review the roster of certified

24 attorneys, monitor the performance of all attorneys

25 certified, and withdraw certification from any attor-
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1 ney who fails to meet high performance standards in

2 a case to which the attorney is appointed; or fails

3 otherwise to demonstrate continuing competence to

4 represent prisoners in capital litigation.

5 ‘‘(2) In a State that has a publicly funded public de6 fender system that is not organized on a statewide basis,

7 the requirements of section 2261(b) shall have been

8 deemed to have been satisfied if at least one attorney ap9 pointed pursuant to this chapter before trial shall be em10 ployed by a State funded public defender organization, if

11 the highest court of the State finds on an annual basis

12 that the standards and procedures established and main13 tained by such organization (which have been filed by such

14 organization and reviewed by such court on an annual

15 basis) ensure that the attorneys working for such organi16 zation demonstrate continuing competence to represent

17 indigents in capital litigation.

18 ‘‘(c) If a State has not elected to establish one or

19 more statewide certification authorities to certify counsel

20 eligible to be appointed before trial to represent indigents,

21 in the case of an appointment made before trial, at least

22 one attorney appointed under this chapter must have been

23 admitted to practice in the court in which the prosecution

24 is to be tried for not less than 5 years, and must have
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1 not less than 3 years’ experience in the trial of felony pros2 ecutions in that court.

3 ‘‘(d) If a State has not elected to establish one or

4 more statewide certification authorities to certify counsel

5 eligible to be appointed after trial to represent indigents,

6 in the case of an appointment made after trial, at least

7 one attorney appointed under this chapter must have been

8 admitted to practice in the court of last resort of the State

9 for not less than 5 years, and must have had not less than

10 3 years’ experience in the handling of appeals in that

11 State’s courts in felony cases.

12 ‘‘(e) Notwithstanding this subsection, a court, for

13 good cause, may appoint another attorney whose back14 ground, knowledge or experience would otherwise enable

15 the attorney to properly represent the defendant, with due

16 consideration of the seriousness of the possible penalty

17 and the unique and complex nature of the litigation.

18 ‘‘(f) Upon a finding in ex parte proceedings that in19 vestigative, expert or other services are reasonably nec20 essary for the representation of the defendant, whether in

21 connection with issues relating to guilt or issues relating

22 to sentence, the court shall authorize the defendant’s at23 torney to obtain such services on behalf of the defendant

24 and shall order the payment of fees and expenses therefor,

25 under subsection (g). Upon finding that timely procure-
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1 ment of such services could not practically await prior au2 thorization, the court may authorize the provision of any

3 payment of services nunc pro tunc.

4 ‘‘(g) The court shall fix the compensation to be paid

5 to an attorney appointed under this subsection (other than

6 State employees) and the fees and expenses to be paid for

7 investigative, expert, and other reasonably necessary serv8 ices authorized under subsection (c), at such rates or

9 amounts as the court determines to be reasonably nec10 essary to carry out the requirements of this subsection.

11 ‘‘§ 2267. Law controlling in Federal habeas corpus

12 proceedings; retroactivity

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

14 governed by the law as it was when the petitioner’s sen15 tence became final. A court considering a claim under this

16 chapter shall consider intervening decisions by the Su17 preme Court of the United States which establish fun18 damental constitutional rights.

19 ‘‘§ 2268. Habeas corpus time requirements

20 ‘‘(a) A Federal district court shall determine any pe21 tition for a writ of habeas corpus brought under this chap22 ter within 110 days of filing

23 ‘‘(b) The court of appeals shall hear and determine

24 any appeal of the granting, denial, or partial denial of a
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1 petition for a writ of habeas corpus brought under this

2 chapter within 90 days after the notice of appeal is filed.

3 ‘‘(c) The Supreme Court shall act on any petition for

4 a writ of certiorari in a case brought under this chapter

5 within 90 days after the petition is filed.

6 ‘‘(d) The Administrative Office of United States

7 Courts shall report annually to Congress on the compli8 ance by the courts with the time limits established in this

9 section.’’.

10 SEC. 2. AMENDMENT TO TABLE OF CHAPTERS.—

11 The table of chapters for part IV of title 28, United States

12 Code, is amended by inserting after the item for chapter

13 153 the following:

‘‘154. Special habeas corpus procedures in capital cases 2261’’.

14 SEC. 3. AMENDMENT TO SECTION 2254 OF TITLE

15 28.—Section 2254(c) of title 28, United States Code, is

16 amended by—

17 (1) striking ‘‘An applicant’’ and inserting ‘‘(1)

18 Except as provided in paragraph (2), an applicant’’;

19 and

20 (2) adding at the end thereof the following:

21 ‘‘(2) An applicant in a capital case shall be deemed

22 to have exhausted the remedies available in the courts of

23 the State when he has exhausted any right to direct appeal

24 in the State.’’.

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