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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 246 Introduced in Senate (IS)]

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.

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

SECTION 1. SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES.

    (a) In General.--Part IV of title 28, United States Code, is 
amended by inserting immediately following chapter 153 the following 
new chapter:

    ``CHAPTER 154--SPECIAL HABEAS CORPUS 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.
``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
    ``(a) This chapter shall apply--
            ``(1) to--
                    ``(A) cases in which the defendant is tried for a 
                capital offense; or
                    ``(B) cases arising under section 2254 of this 
                title brought by prisoners in State custody who are 
                subject to a capital sentence; and
            ``(2) only if subsections (b) and (c) are satisfied.
    ``(b) This chapter is applicable if a State establishes by rule of 
its court of last resort or by statute a mechanism for the appointment, 
compensation, and payment of reasonable fees and litigation expenses of 
competent counsel consistent with section 2266 of this title.
    ``(c) Any mechanism for the appointment, compensation, and 
reimbursement of counsel as provided in subsection (b) must offer 
counsel to all State defendants tried for a capital offense and all 
State prisoners under capital sentence and must provide for the entry 
of an order by a court of record--
            ``(1) appointing one or more counsel to represent the 
        defendant or prisoner upon a finding that the defendant or 
        prisoner--
                    ``(A) is indigent and has accepted the offer; or
                    ``(B) is unable competently to decide whether to 
                accept or reject the offer;
            ``(2) finding, after a hearing, if necessary, that the 
        defendant or prisoner has rejected the offer of counsel and 
        made the decision with an understanding of its legal 
        consequences; or
            ``(3) denying the appointment of counsel upon a finding 
        that the defendant or prisoner is not indigent.
    ``(d) No counsel appointed pursuant to subsections (b) and (c) to 
represent--
            ``(1) a State defendant being tried for a capital offense; 
        or
            ``(2) prisoner under capital sentence during direct appeals 
        in the State courts,
shall have previously represented the defendant or prisoner at trial or 
on direct appeal in the case for which the appointment is made unless 
the defendant or prisoner and counsel expressly request continued 
representation.
    ``(e) The ineffectiveness or incompetence of counsel during State 
or Federal collateral post-conviction proceedings in a capital case 
shall not be a ground for relief in a proceeding arising under this 
chapter. This subsection shall not preclude the appointment of 
different counsel at any phase of Federal post-conviction proceedings.
``Sec. 2262. Mandatory stay of execution; duration; limits on stays of 
              execution; successive petitions
    ``(a) Upon the entry in the appropriate State court of record of an 
order pursuant to section 2261(c) of this title for a prisoner under 
capital sentence, a warrant or order setting an execution date for a 
State prisoner shall be stayed upon application to any court that would 
have jurisdiction over any proceedings filed pursuant to this chapter. 
The application must recite that the State has invoked the procedures 
of this chapter and that the scheduled execution is subject to stay.
    ``(b) A stay of execution granted pursuant to subsection (a) shall 
expire if--
            ``(1) a State prisoner fails to file a habeas corpus 
        petition under this chapter within the time required in section 
        2263 of this title; or
            ``(2) upon completion of district court and court of 
        appeals review under this chapter, the petition for relief is 
        denied and--
                    ``(A) the time for filing a petition for certiorari 
                has expired and no petition has been filed;
                    ``(B) a timely petition for certiorari was filed 
                and the Supreme Court denied the petition; or
                    ``(C) a timely petition for certiorari was filed 
                and upon consideration of the case, the Supreme Court 
                disposed of it in a manner that left the capital 
                sentence undisturbed; or
            ``(3) before a court of competent jurisdiction, a State 
        prisoner under capital sentence waives the right to pursue 
        habeas corpus review under section 2254 of this title, in the 
        presence of counsel and after having been advised of the 
        consequences of making the waiver.
    ``(c) If one of the conditions in subsection (b) has occurred, no 
Federal court thereafter shall have the authority to enter a stay of 
execution or grant relief in a capital case unless--
            ``(1) the basis for the stay and request for relief is a 
        claim not previously presented in the State or Federal courts;
            ``(2) the failure to raise the claim--
                    ``(A) was the result of State action in violation 
                of the Constitution or laws of the United States;
                    ``(B) was the result of a recognition by the 
                Supreme Court of a new fundamental right that is 
                retroactively applicable; or
                    ``(C) is due to the fact the claim is based on 
                facts that could not have been discovered through the 
                exercise of reasonable diligence in time to present the 
                claim for State or Federal post-conviction review; and
            ``(3) the filing of any successive petition for a writ of 
        habeas corpus is authorized by the appropriate court of appeals 
        in accordance with section 2264(c) and the facts underlying the 
        claim would be sufficient, if proved, to undermine the court's 
        confidence in the jury's determination of guilt on the offense 
        or offenses for which the death penalty was imposed or newly 
        discovered facts which are not based upon or include opinion 
        evidence, expert or otherwise, which would be sufficient to 
        undermine the court's confidence in the validity of the death 
        sentence.
``Sec. 2263. Filing of habeas corpus petition; time requirements; 
              tolling rules
    ``(a) Any petition filed under this chapter for habeas corpus 
relief must be filed in the appropriate district court not later than 
60 days after the filing in the appropriate State court of record of an 
order issued in compliance with section 2261(c) of this title. The time 
requirements established by this section shall be tolled--
            ``(1) from the date that a petition for certiorari is filed 
        in the Supreme Court until the date of final disposition of the 
        petition if a State prisoner seeks review of a capital sentence 
        that has been affirmed on direct appeal by the court of last 
        resort of the State or has otherwise become final for State law 
        purposes; and
            ``(2) during an additional period not to exceed 60 days, if 
        counsel for the State prisoner--
                    ``(A) moves for an extension of time in Federal 
                district court that would have jurisdiction over the 
                case upon the filing of a habeas corpus petition under 
                section 2254 of this title; and
                    ``(B) makes a showing of good cause for counsel's 
                inability to file the habeas corpus petition within the 
                60-day period established by this section. A court that 
                finds that good cause has been shown shall explain in 
                writing the basis for such a finding.
    ``(b) A notice of appeal from a judgment of the district court in a 
claim under this chapter shall be filed within 20 days of the entry of 
judgment.
    ``(c) A petition for a writ of certiorari to the Supreme Court of 
the United States in a claim under this chapter shall be filed within 
20 days of the issuance of the mandate by the court of appeals.
``Sec. 2264. Evidentiary hearings; scope of Federal review; district 
              court adjudication
    ``(a) Whenever a State prisoner under a capital sentence files a 
petition for habeas corpus relief to which this chapter applies, the 
district court--
            ``(1) shall determine the sufficiency of the evidentiary 
        record for habeas corpus review; and
            ``(2) may conduct an evidentiary hearing when the court, in 
        its discretion, determines that such hearing is necessary to 
        complete the record for habeas corpus review.
    ``(b) Upon the development of a complete evidentiary record, the 
district court shall rule on the merits of the claims properly before 
it within the time limits established in section 2268 of this title.
    ``(c)(1) Except as provided in paragraph (2), a district court may 
not consider a successive claim under this chapter.
    ``(2) A district court may only consider a successive claim under 
this chapter if the petitioner seeks leave to file a successive 
petition in the appropriate court of appeals.
    ``(3) In a case in which the appropriate court of appeals grants 
leave to file a successive petition, the time limits established by 
this chapter shall be applicable to all further proceedings under the 
successive petition.
``Sec. 2265. Certificate of probable cause inapplicable
    ``The requirement of a certificate of probable cause in order to 
appeal from the district court to the court of appeals does not apply 
to habeas corpus cases subject to this chapter.
``Sec. 2266. Counsel in capital cases; trial and post-conviction 
              standards
    ``(a) A mechanism for the provision of counsel services to 
indigents sufficient to invoke the provisions of this chapter shall--
            ``(1) provide for counsel to indigents charged with 
        offenses for which capital punishment is sought, to indigents 
        who have been sentenced to death and who seek appellate or 
        collateral review in State court, and to indigents who have 
        been sentenced to death and who seek certiorari review in the 
        United States Supreme Court; collateral review in State court, 
        and to indigents who have been sentenced to death and who seek 
        certiorari review in the United States Supreme Court; and
            ``(2) provide for the entry of an order of a court of 
        record appointing one or more counsel to represent the prisoner 
        except upon a judicial determination (after a hearing, if 
        necessary) that (A) the prisoner is not indigent; or (B) the 
        prisoner knowingly and intelligently waives the appointment of 
        counsel.
    ``(b)(1) Except as provided below, at least one attorney appointed 
pursuant to this chapter before trial, if applicable, and at least one 
attorney appointed pursuant to this chapter after trial, if applicable, 
shall have been certified by a statewide certification authority. The 
States may elect to create one or more certification authorities (but 
not more than three such certification authorities) to perform the 
responsibilities set forth below. The certification authority for 
counsel at any stage of a capital case shall be--
            ``(i) a special committee, constituted by the State court 
        of last resort or by State law, relying on staff attorneys of a 
        defender organization, members of the private bar, or both; or
            ``(ii) a capital litigation resource center, relying on 
        staff attorneys, members of the private bar, or both; or
            ``(iii) a statewide defender organization, relying on staff 
        attorneys, members of the private bar, or both.

The certification authority shall--
            ``(iv) certify attorneys qualified to represent persons 
        charged with capital offenses or sentenced to death; and
            ``(v) draft and annually publish procedures and standards 
        by which attorneys are certified and rosters of certified 
        attorneys; and
            ``(vi) periodically review the roster of certified 
        attorneys, monitor the performance of all attorneys certified, 
        and withdraw certification from any attorney who fails to meet 
        high performance standards in a case to which the attorney is 
        appointed; or fails otherwise to demonstrate continuing 
        competence to represent prisoners in capital litigation.
    ``(2) In a State that has a publicly funded public defender system 
that is not organized on a statewide basis, the requirements of section 
2261(b) shall have been deemed to have been satisfied if at least one 
attorney appointed pursuant to this chapter before trial shall be 
employed by a State funded public defender organization, if the highest 
court of the State finds on an annual basis that the standards and 
procedures established and maintained by such organization (which have 
been filed by such organization and reviewed by such court on an annual 
basis) ensure that the attorneys working for such organization 
demonstrate continuing competence to represent indigents in capital 
litigation.
    ``(c) If a State has not elected to establish one or more statewide 
certification authorities to certify counsel eligible to be appointed 
before trial to represent indigents, in the case of an appointment made 
before trial, at least one attorney appointed under this chapter must 
have been admitted to practice in the court in which the prosecution is 
to be tried for not less than 5 years, and must have not less than 3 
years' experience in the trial of felony prosecutions in that court.
    ``(d) If a State has not elected to establish one or more statewide 
certification authorities to certify counsel eligible to be appointed 
after trial to represent indigents, in the case of an appointment made 
after trial, at least one attorney appointed under this chapter must 
have been admitted to practice in the court of last resort of the State 
for not less than 5 years, and must have had not less than 3 years' 
experience in the handling of appeals in that State's courts in felony 
cases.
    ``(e) Notwithstanding this subsection, a court, for good cause, may 
appoint another attorney whose background, knowledge or experience 
would otherwise enable the attorney to properly represent the 
defendant, with due consideration of the seriousness of the possible 
penalty and the unique and complex nature of the litigation.
    ``(f) Upon a finding in ex parte proceedings that investigative, 
expert or other services are reasonably necessary for the 
representation of the defendant, whether in connection with issues 
relating to guilt or issues relating to sentence, the court shall 
authorize the defendant's attorney to obtain such services on behalf of 
the defendant and shall order the payment of fees and expenses 
therefor, under subsection (g). Upon finding that timely procurement of 
such services could not practically await prior authorization, the 
court may authorize the provision of any payment of services nunc pro 
tunc.
    ``(g) The court shall fix the compensation to be paid to an 
attorney appointed under this subsection (other than State employees) 
and the fees and expenses to be paid for investigative, expert, and 
other reasonably necessary services authorized under subsection (c), at 
such rates or amounts as the court determines to be reasonably 
necessary to carry out the requirements of this subsection.
``Sec. 2267. Law controlling in Federal habeas corpus proceedings; 
              retroactivity
    ``In cases subject to this chapter, all claims shall be governed by 
the law as it was when the petitioner's sentence 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.
``Sec. 2268. Habeas corpus time requirements
    ``(a) A Federal district court shall determine any petition for a 
writ of habeas corpus brought under this chapter within 110 days of 
filing
    ``(b) The court of appeals shall hear and determine any appeal of 
the granting, denial, or partial denial of a petition for a writ of 
habeas corpus brought under this chapter within 90 days after the 
notice of appeal is filed.
    ``(c) The Supreme Court shall act on any petition for a writ of 
certiorari in a case brought under this chapter within 90 days after 
the petition is filed.
    ``(d) The Administrative Office of United States Courts shall 
report annually to Congress on the compliance by the courts with the 
time limits established in this section.''.
    Sec. 2. Amendment to Table of Chapters.--The table of chapters for 
part IV of title 28, United States Code, is amended by inserting after 
the item for chapter 153 the following:

``154. Special habeas corpus procedures in capital cases....    2261''.
    Sec. 3. Amendment to Section 2254 of Title 28.--Section 2254(c) of 
title 28, United States Code, is amended by--
            (1) striking ``An applicant'' and inserting ``(1) Except as 
        provided in paragraph (2), an applicant''; and
            (2) adding at the end thereof the following:
    ``(2) An applicant in a capital case shall be deemed to have 
exhausted the remedies available in the courts of the State when he has 
exhausted any right to direct appeal in the State.''.

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