II

103D CONGRESS

1ST SESSION S. 248

To establish constitutional procedures for the imposition of the death penalty

for terrorist murders.

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 establish constitutional procedures for the imposition of

the death penalty for terrorist murders.

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 ‘‘Terrorist Death Pen5 alty Act of 1993’’.

6 SEC. 2. DEATH PENALTY FOR TERRORIST ACTS.

7 (a) OFFENSE.—Paragraph (1) of subsection 2331(a)

8 of title 18 of the United States Code is amended to read

9 as follows:
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1 ‘‘(1)(A) if the killing is a first degree murder

2 as defined in section 1111(a) of this title, be pun3 ished by death or imprisonment for any term of

4 years or for life, or be fined under this title, or both;

5 and

6 ‘‘(B) if the killing is a murder other than a first

7 degree murder as defined in section 1111(a) of this

8 title, be fined under this title or imprisoned for any

9 term of years or for life, or both so fined and so im10 prisoned;’’.

11 (b) DEATH PENALTY.—Section 2331 of title 18,

12 United States Code, is amended by adding at the end

13 thereof the following:

14 ‘‘(f) DEATH PENALTY.—

15 ‘‘(1) SENTENCE OF DEATH.—A defendant who

16 has been found guilty of an offense under subsection

17 (a)(1)(A), if the defendant, as determined beyond a

18 reasonable doubt at a hearing under paragraph (3)

19 either—

20 ‘‘(A) intentionally killed the victim;

21 ‘‘(B) intentionally participated in an act,

22 contemplating that the life of a person would be

23 taken or intending that lethal force would be

24 used in connection with a person, other than
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1 one of the participants in the offense, and the

2 victim died as a direct result of the act; or

3 ‘‘(C) acting with reckless disregard for

4 human life, engaged or substantially partici5 pated in conduct which the defendant knew

6 would create a grave risk of death to another

7 person or persons and death resulted from such

8 conduct,

9 shall be sentenced to death if, after consideration of the

10 factors set forth in paragraph (2) in the course of a hear11 ing held under paragraph (3), it is determined that impo12 sition of a sentence of death is justified, except that no

13 person may be sentenced to death who was less than 18

14 years of age at the time of the offense.

15 ‘‘(2) FACTORS TO BE CONSIDERED IN DETER16 MINING WHETHER A SENTENCE OF DEATH IS JUSTI17 FIED.—

18 ‘‘(A) MITIGATING FACTORS.—In determin19 ing whether a sentence of death is justified for

20 any offense, the jury, or if there is no jury, the

21 court, shall consider each of the following miti22 gating factors and determine which, if any,

23 exist:

24 ‘‘(i) MENTAL CAPACITY.—The defend25 ant’s mental capacity to appreciate the
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1 wrongfulness of the defendant’s conduct or

2 to conform the defendant’s conduct to the

3 requirements of law was significantly im4 paired, regardless of whether the capacity

5 was so impaired as to constitute a defense

6 to the charge.

7 ‘‘(ii) DURESS.—The defendant was

8 under unusual and substantial duress, re9 gardless of whether the duress was of such

10 a degree as to constitute a defense to the

11 charge.

12 ‘‘(iii) PARTICIPATION IN OFFENSE

13 MINOR.—The defendant is punishable as a

14 principal (as defined in section 2 of title 18

15 of the United States Code) in the offense,

16 which was committed by another, but the

17 defendant’s participation was relatively

18 minor, regardless of whether the participa19 tion was so minor as to constitute a de20 fense to the charge.

21 The jury, or if there is no jury, the court, shall

22 consider whether any other aspect of the de23 fendant’s character or record or any other cir24 cumstances of the offense that the defendant

25 may proffer as a mitigating factor exists.
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1 ‘‘(B) AGGRAVATING FACTORS FOR HOMI2 CIDE.—In determining whether a sentence of

3 death is justified for an offense described in

4 paragraph (1), the jury, or if there is no jury,

5 the court, shall consider each of the following

6 aggravating factors and determine which, if

7 any, exist:

8 ‘‘(i) DEATH OCCURRED DURING COM9 MISSION OF ANOTHER CRIME.—The death

10 occurred during the commission or at11 tempted commission of, or during the im12 mediate flight from the commission of, an

13 offense under section 751 (prisoners in

14 custody of institution or officer), section

15 794 (gathering or delivering defense infor16 mation to aid foreign government), section

17 844(d) (transportation of explosives in

18 interstate commerce for certain purposes),

19 section 844(f) (destruction of Government

20 property by explosives), section 1201 (kid21 napping), or section 2381 (treason) of this

22 title, section 1826 of title 28 (persons in

23 custody as recalcitrant witnesses or hos24 pitalized following a finding of not guilty

25 only by reason of insanity), or section 902
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1 (i) or (n) of the Federal Aviation Act of

2 1958, as amended (49 U.S.C. 1472 (i) or

3 (n) (aircraft piracy)).

4 ‘‘(ii) INVOLVEMENT OF FIREARM OR

5 PREVIOUS CONVICTION OF VIOLENT FEL6 ONY INVOLVING FIREARM.—The defend7 ant—

8 ‘‘(I) during and in relation to the

9 commission of the offense or in escap10 ing apprehension used or possessed a

11 firearm as defined in section 921 of

12 this title; or

13 ‘‘(II) has previously been con14 victed of a Federal or State offense

15 punishable by a term of imprisonment

16 of more than one year, involving the

17 use or attempted or threatened use of

18 a firearm, as defined in section 921 of

19 this title, against another person.

20 ‘‘(iii) PREVIOUS CONVICTION OF OF21 FENSE FOR WHICH A SENTENCE OF DEATH

22 OR LIFE IMPRISONMENT WAS AUTHOR23 IZED.—The defendant has previously been

24 convicted of another Federal or State of25 fense resulting in the death of a person,
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1 for which a sentence of life imprisonment

2 or death was authorized by statute.

3 ‘‘(iv) PREVIOUS CONVICTION OF

4 OTHER SERIOUS OFFENSES.—The defend5 ant has previously been convicted of 2 or

6 more Federal or State offenses, each pun7 ishable by a term of imprisonment of more

8 than one year, committed on different oc9 casions, involving the importation, manu10 facture, or distribution of a controlled sub11 stance (as defined in section 102 of the

12 Controlled Substances Act (21 U.S.C.

13 802)) or the infliction of, or attempted in14 fliction of, serious bodily injury or death

15 upon another person.

16 ‘‘(v) GRAVE RISK OF DEATH TO ADDI17 TIONAL PERSONS.—The defendant, in the

18 commission of the offense or in escaping

19 apprehension, knowingly created a grave

20 risk of death to one or more persons in ad21 dition to the victim of the offense.

22 ‘‘(vi) HEINOUS, CRUEL, OR DEPRAVED

23 MANNER OF COMMISSION.—The defendant

24 committed the offense in an especially hei25 nous, cruel, or depraved manner in that it
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1 involved torture or serious physical abuse

2 to the victim.

3 ‘‘(vii) PROCUREMENT OF OFFENSE BY

4 PAYMENT.—The defendant procured the

5 commission of the offense by payment, or

6 promise of payment, of anything of pecu7 niary value.

8 ‘‘(viii) COMMISSION OF THE OFFENSE

9 FOR PECUNIARY GAIN.—The defendant

10 committed the offense as consideration for

11 the receipt, or in the expectation of the re12 ceipt, of anything of pecuniary value.

13 ‘‘(ix) SUBSTANTIAL PLANNING AND

14 PREMEDITATION.—The defendant commit15 ted the offense after substantial planning

16 and premeditation.

17 ‘‘(x) VULNERABILITY OF VICTIM.—

18 The victim was particularly vulnerable due

19 to old age, youth, or infirmity.

20 ‘‘(xi) TYPE OF VICTIM.—The defend21 ant committed the offense against—

22 ‘‘(I) the President of the United

23 States, the President-elect, the Vice

24 President, the Vice President-elect,

25 the Vice President-designate, or, if
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1 there is no Vice President, the officer

2 next in order of succession to the of3 fice of the President of the United

4 States, or any person who is acting as

5 President under the Constitution and

6 laws of the United States;

7 ‘‘(II) a chief of state, head of

8 government, or the political equiva9 lent, of a foreign nation;

10 ‘‘(III) a foreign official listed in

11 section 1116(b)(3)(A) of this title, if

12 that official is in the United States on

13 official business; or

14 ‘‘(IV) a public servant who is a

15 Federal judge, a Federal law enforce16 ment officer, an employee (including a

17 volunteer or contract employee) of a

18 Federal prison, or an official of the

19 Federal Bureau of Prisons—

20 ‘‘(aa) while such public serv21 ant is engaged in the perform22 ance of the public servant’s offi23 cial duties;
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1 ‘‘(bb) because of the per2 formance of such public servant’s

3 official duties; or

4 ‘‘(cc) because of such public

5 servant’s status as a public serv6 ant.

7 For purposes of this clause, the terms

8 ‘President-elect’ and ‘Vice President-elect’

9 mean such persons as are the apparent

10 successful candidates for the offices of

11 President and Vice President, respectively,

12 as ascertained from the results of the gen13 eral elections held to determine the electors

14 of President and Vice President in accord15 ance with title 3, United States Code, sec16 tions 1 and 2; a ‘Federal law enforcement

17 officer’ is a public servant authorized by

18 law or by a government agency or Con19 gress to conduct or engage in the preven20 tion, investigation, or prosecution of an of21 fense; ‘Federal prison’ means a Federal

22 correctional, detention, or penal facility,

23 Federal community treatment center, or

24 Federal halfway house, or any such prison

25 operated under contract with the Federal
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1 Government; and ‘Federal judge’ means

2 any judicial officer of the United States,

3 and includes a justice of the Supreme

4 Court and a magistrate.

5 The jury, or if there is no jury, the court,

6 may consider whether any other aggravat7 ing factor exists.

8 ‘‘(3) SPECIAL HEARING TO DETERMINE

9 WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—

10 ‘‘(A) NOTICE BY THE GOVERNMENT.—

11 Whenever the Government intends to seek the

12 death penalty for an offense described in para13 graph (1), the attorney for the Government, a

14 reasonable time before the trial, or before ac15 ceptance by the court of a plea of guilty, or at

16 such time thereafter as the court may permit

17 upon a showing of good cause, shall sign and

18 file with the court, and serve on the defendant,

19 a notice—

20 ‘‘(i) that the Government in the event

21 of conviction will seek the sentence of

22 death; and

23 ‘‘(ii) setting forth the aggravating fac24 tor or factors enumerated in paragraph (2)

25 and any other aggravating factor not spe-
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1 cifically enumerated in paragraph (2), that

2 the Government, if the defendant is con3 victed, will seek to prove as the basis for

4 the death penalty.

5 The court may permit the attorney for the Gov6 ernment to amend the notice upon a showing of

7 good cause.

8 ‘‘(B) HEARING BEFORE A COURT OR

9 JURY.—When the attorney for the Government

10 has filed a notice as required under subpara11 graph (A) and the defendant is found guilty of

12 an offense described in paragraph (1), the

13 judge who presided at the trial or before whom

14 the guilty plea was entered, or another judge if

15 that judge is unavailable, shall conduct a sepa16 rate sentencing hearing to determine the pun17 ishment to be imposed. Before such a hearing,

18 no presentence report shall be prepared by the

19 United States Probation Service, notwithstand20 ing the Federal Rules of Criminal Procedure.

21 The hearing shall be conducted—

22 ‘‘(i) before the jury that determined

23 the defendant’s guilt;

24 ‘‘(ii) before a jury impaneled for the

25 purpose of the hearing if—
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1 ‘‘(I) the defendant was convicted

2 upon a plea of guilty;

3 ‘‘(II) the defendant was convicted

4 after a trial before the court sitting

5 without a jury;

6 ‘‘(III) the jury that determined

7 the defendant’s guilt was discharged

8 for good cause; or

9 ‘‘(IV) after initial imposition of a

10 sentence under this paragraph, recon11 sideration of the sentence under the

12 section is necessary; or

13 ‘‘(iii) before the court alone, upon mo14 tion of the defendant and with the ap15 proval of the attorney for the Government.

16 A jury impaneled pursuant to clause (ii) shall

17 consist of 12 members, unless, at any time be18 fore the conclusion of the hearing, the parties

19 stipulate, with the approval of the court, that it

20 shall consist of a lesser number.

21 ‘‘(C) PROOF OF MITIGATING AND AGGRA22 VATING FACTORS.—At the hearing, information

23 may be presented as to—
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1 ‘‘(i) any matter relating to any miti2 gating factor listed in paragraph (2) and

3 any other mitigating factor; and

4 ‘‘(ii) any matter relating to any ag5 gravating factor listed in paragraph (2) for

6 which notice has been provided under sub7 paragraph (A)(ii) and (if information is

8 presented relating to such a listed factor)

9 any other aggravating factor for which no10 tice has been so provided.

11 Information presented may include the trial

12 transcript and exhibits. Any other information

13 relevant to such mitigating or aggravating fac14 tors may be presented by either the government

15 or the defendant, regardless of its admissibility

16 under the rules governing admission of evidence

17 at criminal trials, except that information may

18 be excluded if its probative value is outweighed

19 by the danger of creating unfair prejudice, con20 fusing the issues, or misleading the jury. The

21 attorney for the Government and for the de22 fendant shall be permitted to rebut any infor23 mation received at the hearing, and shall be

24 given fair opportunity to present argument as

25 to the adequacy of the information to establish
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1 the existence of any aggravating or mitigating

2 factor, and as to the appropriateness in that

3 case of imposing a sentence of death. The attor4 ney for the Government shall open the argu5 ment. The defendant shall be permitted to

6 reply. The Government shall then be permitted

7 to reply in rebuttal. The burden of establishing

8 the existence of an aggravating factor is on the

9 Government, and is not satisfied unless the ex10 istence of such a factor is established beyond a

11 reasonable doubt. The burden of establishing

12 the existence of any mitigating factor is on the

13 defendant, and is not satisfied unless the exist14 ence of such a factor is established by a prepon15 derance of the evidence.

16 ‘‘(D) RETURN OF SPECIAL FINDINGS.—

17 The jury, or if there is no jury, the court, shall

18 consider all the information received during the

19 hearing. It shall return special findings identify20 ing any aggravating factor or factors set forth

21 in paragraph (2) of this title found to exist and

22 any other aggravating factor for which notice

23 has been provided under subparagraph (A)

24 found to exist. A finding with respect to a miti25 gating factor may be made by one or more
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1 members of the jury, and any member of the

2 jury who finds the existence of a mitigating fac3 tor may consider such factor established for

4 purposes of this section regardless of the num5 ber of jurors who concur that the factor has

6 been established. A finding with respect to any

7 aggravating factor must be unanimous. If no

8 aggravating factor set forth in paragraph (2) is

9 found to exist, the court shall impose a sentence

10 other than death authorized by law.

11 ‘‘(E) RETURN OF A FINDING CONCERNING

12 A SENTENCE OF DEATH.—If an aggravating

13 factor required to be considered under para14 graph (2)(C) is found to exist the jury, or if

15 there is no jury, the court, shall then consider

16 whether the aggravating factor or factors found

17 to exist outweigh any mitigating factor or fac18 tors. The jury, or if there is no jury, the court,

19 shall recommend a sentence of death if it

20 unanimously finds at least one aggravating fac21 tor and no mitigating factor or if it finds one

22 or more aggravating factors which outweigh any

23 mitigating factors. In any other case, it shall

24 not recommend a sentence of death. The jury

25 shall be instructed that it must avoid any influ-
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1 ence of sympathy, sentiment, passion, prejudice,

2 or other arbitrary factors in its decision, and

3 should make such a recommendation as the in4 formation warrants.

5 ‘‘(F) SPECIAL PRECAUTION TO ASSURE

6 AGAINST DISCRIMINATION.—In a hearing held

7 before a jury, the court, before the return of a

8 finding under subparagraph (E), shall instruct

9 the jury that, in considering whether a sentence

10 of death is justified, it shall not consider the

11 race, color, religious beliefs, national origin, or

12 sex of the defendant or of any victim and that

13 the jury is not to recommend a sentence of

14 death unless it has concluded that it would rec15 ommend a sentence of death for the crime in

16 question no matter what the race, color, reli17 gious beliefs, national origin, or sex of the de18 fendant or of any victim may be. The jury,

19 upon return of a finding under subparagraph

20 (E), shall also return to the court a certificate,

21 signed by each juror, that consideration of the

22 race, color, religious beliefs, national origin, or

23 sex of the defendant or any victim was not in24 volved in reaching the juror’s individual deci25 sion and that the individual juror would have
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1 made the same recommendation regarding a

2 sentence for the crime in question no matter

3 what the race, color, religious beliefs, national

4 origin, or sex of the defendant or any victim

5 may be.

6 ‘‘(4) IMPOSITION OF A SENTENCE OF DEATH.—

7 Upon the recommendation under paragraph (3)(E)

8 that a sentence of death be imposed, the court shall

9 sentence the defendant to death. Otherwise the court

10 shall impose a sentence, other than death, author11 ized by law. Notwithstanding any other provision of

12 law, if the maximum term of imprisonment for the

13 offense is life imprisonment, the court may impose

14 a sentence of life imprisonment without the possibil15 ity of release or furlough.

16 (5) REVIEW OF A SENTENCE OF DEATH.—

17 ‘‘(A) APPEAL.—In a case in which a sen18 tence of death is imposed, the sentence shall be

19 subject to review by the court of appeals upon

20 appeal by the defendant. Notice of appeal of the

21 sentence must be filed within the time specified

22 for the filing of a notice of appeal of the judg23 ment of conviction. An appeal of the sentence

24 under this paragraph may be consolidated with
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1 an appeal of the judgment of conviction and

2 shall have priority over all other cases.

3 ‘‘(B) REVIEW.—The court of appeals shall

4 review the entire record in the case, including—

5 ‘‘(i) the evidence submitted during the

6 trial;

7 ‘‘(ii) the information submitted during

8 the sentencing hearing;

9 ‘‘(iii) the procedures employed in the

10 sentencing hearing; and

11 ‘‘(iv) the special findings returned

12 under paragraph (3)(D).

13 ‘‘(C) DECISION AND DISPOSITION.—

14 ‘‘(i) If the court of appeals determines

15 that—

16 ‘‘(I) the sentence of death was

17 not imposed under the influence of

18 passion, prejudice, or any other arbi19 trary factor; and

20 ‘‘(II) the evidence and informa21 tion support the special findings of

22 the existence of an aggravating factor

23 or factors;

24 it shall affirm the sentence.
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1 ‘‘(ii) In any other case, the court of

2 appeals shall remand the case for reconsid3 eration under paragraph (3) of this title or

4 for imposition of another authorized sen5 tence as appropriate.

6 ‘‘(iii) The court of appeals shall state

7 in writing the reasons for its disposition of

8 an appeal of sentence of death under this

9 paragraph.

10 ‘‘(6) IMPLEMENTATION OF A SENTENCE OF

11 DEATH.—

12 ‘‘(A) IN GENERAL.—A person who has

13 been sentenced to death pursuant to this sub14 section shall be committed to the custody of the

15 Attorney General until exhaustion of the proce16 dures for appeal of the judgment of conviction

17 and for review of the sentence. When the sen18 tence is to be implemented, the Attorney Gen19 eral shall release the person sentenced to death

20 to the custody of a United States marshal, who

21 shall supervise implementation of the sentence

22 in the manner prescribed by the law of the

23 State in which the sentence is imposed. If the

24 law of such State does not provide for imple25 mentation of a sentence of death, the court
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1 shall designate another State, the law of which

2 does so provide, and the sentence shall be im3 plemented in the manner prescribed by such

4 law.

5 ‘‘(B) IMPAIRED MENTAL CAPACITY, AGE,

6 OR PREGNANCY.—A sentence of death shall not

7 be carried out upon a person who is under 18

8 years of age at the time the crime was commit9 ted. A sentence of death shall not be carried out

10 upon a person who is mentally retarded. A sen11 tence of death shall not be carried out upon a

12 person who, as a result of mental disability—

13 ‘‘(i) cannot understand the nature of

14 the pending proceedings, what such person

15 was tried for, the reason for the punish16 ment, or the nature of the punishment; or

17 ‘‘(ii) lacks the capacity to recognize or

18 understand facts which would make the

19 punishment unjust or unlawful or lacks the

20 ability to convey such information to coun21 sel or to the court.

22 A sentence of death shall not be carried out

23 upon a woman while she is pregnant.

24 ‘‘(C) EMPLOYEES MAY DECLINE TO PAR25 TICIPATE.—No employee of any State depart-
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1 ment of corrections or the Federal Bureau of

2 Prisons and no employee providing services to

3 that department or bureau under contract shall

4 be required, as a condition of that employment

5 or contractual obligation, to be in attendance at

6 or to participate in any execution carried out

7 under this paragraph, if such participation is

8 contrary to the moral or religious convictions of

9 the employee. For purposes of this subpara10 graph, the term ‘participate in any execution’

11 includes personal preparation of the condemned

12 individual and the apparatus used for the exe13 cution, and supervision of the activities of other

14 personnel in carrying out such activities.

15 ‘‘(7) USE OF STATE FACILITIES.—A United

16 States marshal charged with supervising the imple17 mentation of a sentence of death may use appro18 priate State or local facilities for the purpose, may

19 use the services of an appropriate State or local offi20 cial or of a person such as an official employed for

21 the purpose, and shall pay the costs thereof in an

22 amount approved by the Attorney General.

23 ‘‘(8) APPOINTMENT OF COUNSEL.—

24 ‘‘(A) FEDERAL CAPITAL CASES.—
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1 ‘‘(i) REPRESENTATION OF INDIGENT

2 DEFENDANTS.—Notwithstanding any other

3 provision of law, this subparagraph shall

4 govern the appointment of counsel for any

5 defendant against whom a sentence of

6 death is sought, or on whom a sentence of

7 death has been imposed, for an offense

8 against the United States, where the de9 fendant is or becomes financially unable to

10 obtain adequate representation. Such a de11 fendant shall be entitled to appointment of

12 counsel from the commencement of trial

13 proceedings until one of the conditions

14 specified in paragraph (9)(B) has occurred.

15 ‘‘(ii) REPRESENTATION BEFORE FI16 NALITY OF JUDGMENT.—A defendant

17 within the scope of this subparagraph shall

18 have counsel appointed for trial representa19 tion as provided in section 3005 of this

20 title. At least one counsel so appointed

21 shall continue to represent the defendant

22 until the conclusion of direct review of the

23 judgment, unless replaced by the court

24 with other qualified counsel.
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1 ‘‘(iii) REPRESENTATION AFTER FI2 NALITY OF JUDGMENT.—When a judgment

3 imposing a sentence of death has become

4 final through affirmance by the Supreme

5 Court on direct review, denial of certiorari

6 by the Supreme Court on direct review, or

7 expiration of the time for seeking direct re8 view in the court of appeals or the Su9 preme Court, the Government shall

10 promptly notify the district court that im11 posed the sentence. Within 10 days of re12 ceipt of such notice, the district court shall

13 proceed to make a determination whether

14 the defendant is eligible under this sub15 paragraph for appointment of counsel for

16 subsequent proceedings. On the basis of

17 the determination, the court shall issue an

18 order (I) appointing one or more counsel

19 to represent the defendant upon a finding

20 that the defendant is financially unable to

21 obtain adequate representation and wishes

22 to have counsel appointed or is unable

23 competently to decide whether to accept or

24 reject appointment of counsel; (II) finding,

25 after a hearing if necessary, that the de-
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1 fendant rejected appointment of counsel

2 and made the decision with an understand3 ing of its legal consequences; or (III) deny4 ing the appointment of counsel upon a

5 finding that the defendant is financially

6 able to obtain adequate representation.

7 Counsel appointed pursuant to this clause

8 shall be different from the counsel who

9 represented the defendant at trial and on

10 direct review unless the defendant and

11 counsel request a continuation or renewal

12 of the earlier representation.

13 ‘‘(iv) STANDARDS FOR COMPETENCE

14 OF COUNSEL.—In relation to a defendant

15 who is entitled to appointment of counsel

16 under this subparagraph, at least one

17 counsel appointed for trial representation

18 must have been admitted to the bar for at

19 least 5 years and have at least 3 years of

20 experience in the trial of felony cases in

21 the Federal district courts. If new counsel

22 is appointed after judgment, at least one

23 counsel so appointed must have been ad24 mitted to the bar for at least 5 years and

25 have at least 3 years of experience in the
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1 litigation of felony cases in the Federal

2 courts of appeals or the Supreme Court.

3 The court, for good cause, may appoint

4 counsel who does not meet these stand5 ards, but whose background, knowledge, or

6 experience would otherwise enable him or

7 her to properly represent the defendant,

8 with due consideration of the seriousness

9 of the penalty and the nature of the litiga10 tion.

11 ‘‘(v) APPLICABILITY OF CRIMINAL

12 JUSTICE ACT.—Except as otherwise pro13 vided in this subparagraph, the provisions

14 of section 3006A of this title shall apply to

15 appointments under this subparagraph.

16 ‘‘(vi) CLAIMS OF INEFFECTIVENESS

17 OF COUNSEL.—The ineffectiveness or in18 competence of counsel during proceedings

19 on a motion under section 2255 of title 28,

20 United States Code, in a capital case shall

21 not be a ground for relief from the judg22 ment or sentence in any proceeding. This

23 limitation shall not preclude the appoint24 ment of different counsel at any stage of

25 the proceedings.
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1 ‘‘(B) STATE CAPITAL CASES.—The laws of

2 the United States shall not be construed to im3 pose any requirement with respect to the ap4 pointment of counsel in any proceeding in a

5 State court or other State proceeding in a cap6 ital case, other than any requirement imposed

7 by the Constitution of the United States. In a

8 proceeding under section 2254 of title 28, Unit9 ed States Code, relating to a State capital case,

10 or any subsequent proceeding on review, ap11 pointment of counsel for a petitioner who is or

12 becomes financially unable to afford counsel

13 shall be in the discretion of the court, except as

14 provided by a rule promulgated by the Supreme

15 Court pursuant to statutory authority. Such ap16 pointment of counsel shall be governed by the

17 provisions of section 3006A of this title.

18 ‘‘(9) COLLATERAL ATTACK ON JUDGMENT IM19 POSING SENTENCE OF DEATH.—

20 ‘‘(A) TIME FOR MAKING SECTION 2255 MO21 TION.—In a case in which a sentence of death

22 has been imposed, and the judgment has be23 come final as described in paragraph (8)(A)(ii),

24 a motion in the case under section 2255 of title

25 28, United States Code, must be filed within 90
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1 days of the issuance of the order relating to ap2 pointment of counsel under paragraph

3 (8)(A)(iii). The court in which the motion is

4 filed, for good cause shown, may extend the

5 time for filing for a period not exceeding 60

6 days. A motion described in this paragraph

7 shall have priority over all noncapital matters in

8 the district court, and in the court of appeals

9 on review of the district court’s decision.

10 ‘‘(B) STAY OF EXECUTION.—The execution

11 of a sentence of death shall be stayed in the

12 course of direct review of the judgment and

13 during the litigation of an initial motion in the

14 case under section 2255 of title 28, United

15 States Code. The stay shall run continuously

16 following imposition of the sentence and shall

17 expire if—

18 ‘‘(i) the defendant fails to file a mo19 tion under section 2255 of title 28, United

20 States Code, within the time specified in

21 subparagraph (A), or fails to make a time22 ly application for court of appeals review

23 following the denial of such a motion by a

24 district court;
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1 ‘‘(ii) upon completion of district court

2 and court of appeals review under section

3 2255 of title 28, United States Code, the

4 motion under that section is denied and (I)

5 the time for filing a petition for certiorari

6 has expired and no petition has been filed;

7 (II) a timely petition for certiorari was

8 filed and the Supreme Court denied the pe9 tition; or (III) a timely petition for certio10 rari was filed and upon consideration of

11 the case, the Supreme Court disposed of it

12 in a manner that left the capital sentence

13 undisturbed; or

14 ‘‘(iii) before a district court, in the

15 presence of counsel and after having been

16 advised of the consequences of his decision,

17 the defendant waives the right to file a mo18 tion under section 2255 of title 28, United

19 States Code.

20 ‘‘(C) FINALITY OF THE DECISION ON RE21 VIEW.—If one of the conditions specified in sub22 paragraph (B) has occurred, no court thereafter

23 shall have the authority to enter a stay of exe24 cution or grant relief in the case unless—
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•S 248 IS

1 ‘‘(i) the basis for the stay and request

2 for relief is a claim not presented in earlier

3 proceedings;

4 ‘‘(ii) the failure to raise the claim is

5 (I) the result of governmental action in

6 violation of the Constitution or laws of the

7 United States; (II) the result of the Su8 preme Court recognition of a new Federal

9 right that is retroactively applicable; or

10 (III) based on a factual predicate that

11 could not have been discovered through the

12 exercise of reasonable diligence in time to

13 present the claim in earlier proceedings;

14 and

15 ‘‘(iii) the facts underlying the claim

16 would be sufficient, if proven, to under17 mine the court’s confidence in the deter18 mination of guilt on the offense or offenses

19 for which the death penalty was imposed.’’.

Æ

S 248 IS——2

S 248 IS——3