58160 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

written comments on the proposal to the 

FAA. No comments were received. 

Class E airspace designations are 

published in paragraph 6006, of FAA 

Order 7400.9X dated August 7, 2013, 

and effective September 15, 2013, which 

is incorporated by reference in 14 CFR 

71.1. The Class E airspace designations 

listed in this document will be 

published subsequently in that Order. 

The Rule 

This action amends Title 14 Code of 

Federal Regulations (14 CFR) part 71 by 

establishing Class E en route domestic 

airspace extending upward from 1,200 

feet above the surface, at the Battle 

Mountain VORTAC navigation aid, 

Battle Mountain, NV, to accommodate 

IFR aircraft under control of Salt Lake 

City, Oakland and Los Angeles ARTCCs 

by vectoring aircraft from en route 

airspace to terminal areas. This action is 

necessary for the safety and 

management of IFR operations. 

The FAA has determined this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current. Therefore, this regulation: (1) Is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866; (2) is not 

a ‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that only affects air traffic 

procedures and air navigation, it is 

certified this rule, when promulgated, 

does not have a significant economic 

impact on a substantial number of small 

entities under the criteria of the 

Regulatory Flexibility Act. The FAA’s 

authority to issue rules regarding 

aviation safety is found in Title 49 of the 

U.S. Code. Subtitle 1, Section 106 

discusses the authority of the FAA 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. This 

rulemaking is promulgated under the 

authority described in Subtitle VII, Part 

A, Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it establishes 

controlled airspace at the Battle 

Mountain VORTAC, Battle Mountain, 

NV. 

Environmental Review 

The FAA has determined that this 

action qualifies for categorical exclusion 

under the National Environmental 

Policy Act in accordance with FAA 

Order 1050.1E, ‘‘Environmental 

Impacts: Policies and Procedures,’’ 

paragraph 311a. This airspace action is 

not expected to cause any potentially 

significant environmental impacts, and 

no extraordinary circumstances exist 

that warrant preparation of an 

environmental assessment. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR Part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9X, Airspace 

Designations and Reporting Points, 

dated August 7, 2013, and effective 

September 15, 2013 is amended as 

follows: 

Paragraph 6006 En Route Domestic 

Airspace Areas. 

* * * * * 

ANM NV E6 Battle Mountain, NV [New] 

Battle Mountain VORTAC, NV 

(Lat. 40°34′09′′ N., long. 116°55′20′′ W.) 

That airspace extending upward from 

1,200 feet above the surface within an area 

bounded by Lat. 41°08′22′′ N., long. 

114°57′44′′ W.; to Lat. 40°40′40′′ N., long. 

114°28′45′′ W.; to Lat. 40°06′57′′ N., long. 

114°37′44′′ W.; to Lat. 39°38′25′′ N., long. 

114°42′19′′ W.; to Lat. 38°28′04′′ N., long. 

114°21′28′′ W.; to Lat. 38°19′56′′ N., long. 

114°09′07′′ W.; to Lat. 38°23′43′′ N., long. 

113°12′48′′ W.; to Lat. 37°48′00′′ N., long. 

113°30′00′′ W.; to Lat. 37°49′25′′ N., long. 

113°42′01′′ W.; to Lat. 37°53′44′′ N., long. 

113°42′03′′ W.; to Lat. 38°01′00′′ N., long. 

114°12′03′′ W.; to Lat. 38°01′00′′ N., long. 

114°30′03′′ W.; to Lat. 37°59′59′′ N., long. 

114°42′06′′ W.; to Lat. 37°53′00′′ N., long. 

116°11′03′′ W.; to Lat. 37°53′00′′ N., long. 

116°26′03′′ W.; to Lat. 37°53′00′′ N., long. 

116°50′00′′ W.; to Lat. 38°13′30′′ N., long. 

117°00′00′′ W.; to Lat. 38°13′30′′ N., long. 

117°16′30′′ W.; to Lat. 37°55′11′′ N., long. 

117°53′37′′ W.; to Lat. 39°39′28′′ N., long. 

117°59′55′′ W.; to Lat. 40°04′38′′ N., long. 

118°49′42′′ W., thence to the point of 

beginning. 

Issued in Seattle, Washington, on 

September 11, 2013. 

Christopher Ramirez, 

Acting Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. 2013–22846 Filed 9–20–13; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 26 

[Docket No. 1540; AG Order No. 3399–2013] 

RIN 1121–AA77 

Certification Process for State Capital 

Counsel System 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Final rule. 

SUMMARY: Chapter 154 of title 28, United 

States Code, provides special 

procedures for Federal habeas corpus 

review of cases brought by indigent 

prisoners in State custody who are 

subject to a capital sentence. These 

special procedures are available to 

States that the Attorney General has 

certified as having established 

mechanisms for the appointment, 

compensation, and payment of 

reasonable litigation expenses of 

competent counsel in State 

postconviction proceedings brought by 

such prisoners, and as providing 

standards of competency for the 

appointment of counsel in these 

proceedings. This rule sets forth the 

regulations for the certification 

procedure. 

DATES: Effective Date: This rule is 

effective October 23, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Robert Hinchman, U.S. Department of 

Justice, Office of Legal Policy, 950 

Pennsylvania Avenue NW., Washington, 

DC 20530, at (202) 514–8059 or 

Robert.Hinchman@usdoj.gov. 

SUPPLEMENTARY INFORMATION: Chapter 

154 of title 28, United States Code, 

makes special procedures applicable in 

Federal habeas corpus review of State 

capital judgments if the Attorney 

General has certified ‘‘that [the] State 

has established a mechanism for 

providing counsel in postconviction 

proceedings as provided in section 

2265’’ and ‘‘counsel was appointed 

pursuant to that mechanism, petitioner 

validly waived counsel, petitioner 

retained counsel, or petitioner was 

found not to be indigent.’’ 28 U.S.C. 

2261(b). Section 2265(a)(1) provides 

that, if requested by an appropriate State 

official, the Attorney General must 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58161 

determine ‘‘whether the State has 

established a mechanism for the 

appointment, compensation, and 

payment of reasonable litigation 

expenses of competent counsel in State 

[capital] postconviction proceedings 

brought by indigent prisoners’’ and 

‘‘whether the State provides standards 

of competency for the appointment of 

counsel in [such] proceedings.’’ 

Chapter 154 was enacted as part of the 

Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA), Public 

Law 104–132, section 107, 110 Stat. 

1214, 1221–26 (1996), and was amended 

by the USA PATRIOT Improvement and 

Reauthorization Act of 2005, Public Law 

109–177, section 507, 120 Stat. 192, 

250–51 (2006). Before the 2006 

amendments, the regional Federal 

courts in their review of State capital 

cases determined States’ eligibility for 

the chapter 154 habeas corpus review 

procedures. The 2006 amendments reassigned responsibility for chapter 154 

certifications to the Attorney General of 

the United States, subject to de novo 

review by the Court of Appeals for the 

District of Columbia Circuit, and added 

a provision stating that there are no 

requirements for certification or for 

application of chapter 154 other than 

those expressly stated in the chapter, 28 

U.S.C. 2265(a)(3). The effects of the 

2006 amendments are explained in an 

opinion of the Department’s Office of 

Legal Counsel and, where relevant to a 

specific provision in the rule, elsewhere 

in this preamble. See The Attorney 

General’s Authority in Certifying 

Whether a State Has Satisfied the 

Requirements for Appointment of 

Competent Counsel for Purposes of 

Capital Conviction Review Proceedings, 

33 Op. O.L.C. ll, at *12 (Dec. 16, 

2009) (‘‘OLC Opinion’’), available at 

http://www.justice.gov/olc/

opinions.htm. 

Section 2265(b) directs the Attorney 

General to promulgate regulations to 

implement the certification procedure 

under chapter 154. The Attorney 

General accordingly published a 

proposed rule in the Federal Register on 

June 6, 2007, to add a new subpart 

entitled ‘‘Certification Process for State 

Capital Counsel Systems’’ to 28 CFR 

part 26. 72 FR 31217. The comment 

period ended on August 6, 2007. The 

Department published a notice on 

August 9, 2007, reopening the comment 

period, 72 FR 44816, and the reopened 

comment period ended on September 

24, 2007. A final rule establishing the 

chapter 154 certification procedure was 

published on December 11, 2008, 73 FR 

75327 (the ‘‘2008 regulations’’), with an 

effective date of January 12, 2009. 

In January 2009, the United States 

District Court for the Northern District 

of California enjoined the Department 

‘‘from putting into effect the rule . . . 

without first providing an additional 

comment period of at least thirty days 

and publishing a response to any 

comments received during such 

period.’’ Habeas Corpus Resource Ctr. v. 

U.S. Dep’t of Justice, No. 08–2649, 2009 

WL 185423, at *10 (N.D. Cal. Jan. 20, 

2009) (preliminary injunction); Habeas 

Corpus Resource Ctr. v. U.S. Dep’t of 

Justice, No. 08–2649, slip op. at 1 (Jan. 

8, 2009) (temporary restraining order). 

On February 5, 2009, the Department 

solicited further public comment, with 

the comment period closing on April 6, 

2009. 74 FR 6131. 

As the Department reviewed the 

submitted comments, it considered 

further the statutory requirements 

governing the regulatory 

implementation of the chapter 154 

certification procedures. The Attorney 

General determined that chapter 154 

gave him greater discretion in making 

certification determinations than the 

2008 regulations would have allowed. 

Therefore, the Department published a 

notice in the Federal Register on May 

25, 2010, proposing to remove the 2008 

regulations pending the completion of a 

new rulemaking process, during which 

the Department would further consider 

what procedures were appropriate. 75 

FR 29217. The comment period closed 

on June 24, 2010. On November 23, 

2010, the Department published a final 

rule removing the 2008 regulations. 75 

FR 71353. 

The Department published a new 

proposed rule on March 3, 2011. 76 FR 

11705. The comment period closed on 

June 1, 2011. The Department published 

a supplemental notice of proposed 

rulemaking on February 13, 2012, which 

identified a number of possible changes 

the Department was considering based 

on comments received in response to 

the publication of the proposed rule. 77 

FR 7559. The comment period closed on 

March 14, 2012. 

Summary of Comments 

About 60 comments were received on 

the proposed rule, including both 

comments received on the initial notice 

of proposed rulemaking and comments 

received on the supplemental notice of 

proposed rulemaking. 

Some commenters urged the 

Department to publish, in effect, a third 

notice of proposed rulemaking so as to 

disclose the exact text of the final rule— 

particularly the language regarding the 

effect of compliance with benchmarks 

on certification—before its publication. 

However, the Department published the 

full text of the proposed rule in the 

original notice of proposed rulemaking. 

76 FR 11705. It also published a 

supplemental notice of proposed 

rulemaking to provide a further 

opportunity for public input on changes 

to the rule under consideration 

following initial comment. 77 FR 7559. 

The text of this final rule is the same as 

that published in the original notice of 

proposed rulemaking, except for five 

changes to that text that were precisely 

described in the supplemental notice, 

further clarifying amendments (affecting 

§§ 26.20, 26. 21, 26.22(b), (c), and (d), 

and 26.23(c)), and minor technical 

changes. All of the changes made to the 

text directly pertain to subjects and 

issues identified as under consideration 

by the terms of the original notice and 

supplemental notice and are responsive 

to the public comments received on 

those notices. The extensive comments 

received in response to the two 

publications confirm that interested 

members of the public were able to 

comment intelligently on the issues 

affecting the formulation of the final 

rule and in fact did so. 

In the ensuing summary, comments 

that concern the general approach of the 

rule or that affect a number of 

provisions in the rule are discussed 

initially, followed by discussion of 

comments that pertain more specifically 

to particular provisions in the rule. 

General Comments 

The Basic Approach of the Rule 

Two commenters argued that the 

Attorney General lacks authority to 

articulate substantive standards for 

chapter 154 certification, contending 

instead that chapter 154 limits the 

Attorney General to performing 

ministerial tasks when exercising his or 

her certification responsibilities. These 

comments are not well-founded. 

Chapter 154 is reasonably construed to 

allow the Attorney General to define 

within reasonable bounds the chapter’s 

requirements for certification, and to 

evaluate whether a State’s mechanism is 

adequate for purposes of ensuring that 

it will result in the appointment of 

competent counsel. The reasons for this 

conclusion are summarized in the OLC 

Opinion and elsewhere in this 

preamble. 

Many commenters agreed that the 

Attorney General may appropriately 

specify and apply a substantive Federal 

standard that State mechanisms must 

meet to satisfy chapter 154’s 

requirements for certification, and this 

rule specifies that standard, within the 

limits of the statutory scheme it 

implements: (i) Appointment—Chapter 

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58162 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

154 requires the Attorney General to 

certify ‘‘whether the State has 

established a mechanism for the 

appointment . . . of . . . counsel’’ in 

State capital collateral proceedings. This 

rule provides further specification 

regarding the statutory appointment 

procedures and discusses the express 

statutory provisions that require such 

appointments to occur in a reasonably 

timely fashion. (ii) Competent 

Counsel—Chapter 154 provides that the 

Attorney General must determine 

whether the State has established a 

mechanism for the appointment of 

‘‘competent counsel’’ in State capital 

collateral proceedings, and ‘‘whether 

the State provides standards of 

competency for the appointment of 

counsel’’ in such proceedings. This rule 

provides two ‘‘benchmark’’ competency 

standards that are presumptively 

sufficient to warrant certification while 

still leaving States some leeway to adopt 

other standards so long as they 

reasonably assure a level of proficiency 

appropriate for State postconviction 

litigation in capital cases. (iii) 

Compensation and payment of 

reasonable litigation expenses—Chapter 

154 additionally requires the Attorney 

General to determine whether the State 

has established a mechanism for the 

‘‘compensation’’ and ‘‘payment of 

reasonable litigation expenses’’ of 

competent counsel in State capital 

collateral proceedings. This rule 

provides four benchmark compensation 

standards that are presumptively 

adequate while again leaving States 

some significant discretion to formulate 

alternative compensation schemes, if 

reasonably designed to ensure the 

availability and timely appointment of 

competent counsel. And as to all of 

these matters, this rule provides that the 

Attorney General will consider a State’s 

submission requesting certification and 

any input from interested parties 

received through a public comment 

procedure before determining whether 

certification is warranted. 

Several commenters, however, argued 

that the certification standards and 

procedures promulgated in this rule 

(and described in the prior notice and 

supplemental notice of proposed 

rulemaking) do not go far enough in 

dictating the standards States must 

meet, or in providing for sufficient 

review and oversight by the Attorney 

General of State compliance with 

mechanisms for which certification is 

sought. For the reasons discussed 

generally below, and elsewhere in this 

preamble in the context of specific 

provisions of the rule, the Department 

has not adopted the changes proposed 

by these commenters. 

Some of these commenters urged that 

the rule incorporate counsel 

competency provisions that would have 

the effect of eliminating or largely 

displacing State discretion to develop, 

within appropriate bounds, mechanisms 

for ensuring that competent counsel are 

appointed. One commenter, for 

instance, proposed that the rule should 

prescribe uniform national competency 

standards that must be adopted by any 

and all States seeking certification. 

Other commenters contended that the 

rule should incorporate measures as to 

prior experience in capital and 

postconviction capital proceedings, 

specialized training, demonstrated 

competence according to performance 

standards, and removal of attorneys who 

fail to provide effective representation— 

and find deficient, without exception, 

any State system that does not 

incorporate all of these features. The 

Department did not accept these 

comments, believing that they risk 

conflict with the statutory scheme, 

which leaves room for States to 

formulate their own standards so long as 

they reasonably assure the availability 

and appointment of competent counsel. 

See OLC Opinion at *12–13; see also 

135 Cong. Rec. 24696 (1989) (report of 

the Judicial Conference’s Ad Hoc 

Committee on Federal Habeas Corpus in 

Capital Cases (‘‘the Powell Committee 

report’’) from which many of the 

relevant features of Chapter 154 derive, 

explaining that giving States ‘‘wide 

latitude to establish a mechanism that 

complies with [the statutory 

requirements]’’ is ‘‘more consistent with 

the federal-state balance’’). 

Raising another issue, several 

comments proposed that the rule 

require a showing of State compliance 

with its own established mechanism as 

a condition of certification. As 

envisioned by these comments, the 

Attorney General, when presented with 

a request for certification, would review 

a State’s record of appointments in 

individual cases to verify that the 

appointments were made in conformity 

with the State’s established mechanism. 

These comments were not adopted 

because the statutory scheme does not 

call for such case-specific oversight by 

the Attorney General of State 

compliance with a mechanism it has 

established. 

Chapter 154 in its current formulation 

states two preconditions for the 

chapter’s applicability in a particular 

case: (1) As provided in section 

2261(b)(1), ‘‘the Attorney General of the 

United States certifies that a State has 

established a mechanism for providing 

counsel in postconviction proceedings 

as provided in section 2265’’; and (2) as 

provided in section 2261(b)(2), ‘‘counsel 

was appointed pursuant to that 

mechanism, petitioner validly waived 

counsel, petitioner retained counsel, or 

petitioner was found not to be 

indigent.’’ Of these two functions, only 

the general certification function is 

assigned to ‘‘the Attorney General of the 

United States.’’ The case-specific 

function of ascertaining whether 

counsel was appointed pursuant to the 

certified mechanism is reserved to 

Federal habeas courts, which can 

address individual irregularities and 

decide whether the Federal habeas 

corpus review procedures of chapter 

154 will apply in particular cases. If the 

commenters were correct in asserting 

that the Attorney General should 

withhold certification unless he or she 

finds that the State has complied with 

its established mechanism in every case, 

there would have been little need for 

Congress to have included section 

2261(b)(2). Cf. Ashmus v. Woodford, 

202 F.3d 1160, 1168 & n.13 (9th Cir. 

2000) (chapter 154 designed to avoid 

case-by-case analysis of counsel’s 

competence by requiring binding 

appointment standards). Moreover, if a 

State establishes a new mechanism for 

appointment of competent counsel (in 

response to this rule and its articulation 

of benchmark standards) and requests at 

the outset that the Attorney General 

determine its adequacy, chapter 154 

should not be read to foreclose 

certification simply because the 

Attorney General would not yet have a 

basis to examine the State’s compliance 

with the newly established system. 

Though the Department rejects the 

suggestion that the Attorney General’s 

certification determination should 

depend on whether a State complies 

with its own mechanism in isolated 

cases, the question of whether a State 

has ‘‘established’’ a mechanism is a 

conceptually distinct matter that the 

statutory framework does charge the 

Attorney General with determining, see 

28 U.S.C. 2265(a)(1)(A)–(B). The 

requirement of having ‘‘established’’ a 

mechanism consistent with chapter 154 

presupposes that the State has adopted 

and implemented standards consistent 

with the chapter’s requirements 

concerning counsel appointment, 

competency, compensation, and 

expenses. Thus, the rule allows for the 

possibility that the Attorney General 

will need to address situations in which 

there has been a wholesale failure to 

implement one or more material 

elements of a mechanism described in a 

State’s certification submission, such as 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58163 

when a State’s submission relying on 

§ 26.22(b)(1)(ii) in the rule points to a 

statute that authorizes a State agency to 

create and fund a statewide attorney 

monitoring program, but the agency 

never actually expends any funds, or 

expends funds to provide for monitoring 

of attorneys in only a few of its cities. 

Addressing any such situations would 

require careful consideration of the 

specific features of a mechanism 

presented for certification, and is 

therefore best left to individual 

certification decisions. Other than in 

these situations, should they arise, 

questions of compliance by a State with 

the standards of its capital counsel 

mechanism will be a matter for the 

Federal habeas courts. 

Finally, a few of the comments could 

be read to suggest that chapter 154 

requires the Attorney General to certify 

a State mechanism only if he or she 

examines and is satisfied by the actual 

performance of postconviction counsel 

following appointment. On such an 

understanding, an assessment by the 

Attorney General of the performance of 

attorneys in State habeas proceedings 

(e.g., what investigation was done or not 

done, or what arguments were made or 

not made in a habeas petition) would 

inform a decision as to whether the 

State’s mechanism adequately provides 

for appointment of competent 

postconviction counsel and, 

accordingly, whether chapter 154 

certification is warranted. To the extent 

that the comments urged such an 

interpretation, it was rejected in 

formulating the rule. 

The actual requirements under 

chapter 154 relating to counsel 

competency are establishment by a State 

of ‘‘a mechanism for the appointment 

. . . of competent counsel’’ in State 

capital collateral proceedings, and 

provision by the State of ‘‘standards of 

competency for the appointment of 

counsel’’ in such proceedings. Neither 

of these provisions suggests that the 

Attorney General is required to inquire 

into the facts of how counsel performed 

following appointment in all or some 

subset of cases. Rather, both frame their 

requirements regarding counsel 

competency as matters relating to 

appointment, and are naturally 

understood as contemplating an inquiry 

into whether a State has put in place 

adequate qualification standards that 

counsel must meet to be eligible for 

appointment. This understanding is 

supported by the Powell Committee 

report. The report explained that 

Federal review would examine whether 

a State’s mechanism for appointing 

capital postconviction counsel comports 

with the statutory requirements ‘‘as 

opposed to the competency of particular 

counsel.’’ 135 Cong. Rec. 24696 (1989). 

It further explained that, in contrast to 

the focus on ‘‘the performance of a 

capital defendant’s trial and appellate 

counsel,’’ ‘‘[t]he effectiveness of state 

and federal postconviction counsel is a 

matter that can and must be dealt with 

in the appointment process.’’ Id. 

The Role of the Attorney General 

Some commenters asserted that the 

Attorney General has an inherent 

conflict of interest that should 

disqualify him from making certification 

determinations under chapter 154. 

These commenters claimed that the 

Attorney General’s prosecutorial 

functions and responsibilities would 

render him unable to objectively 

evaluate State capital counsel systems. 

The remediation proposed by these 

commenters included the suggestion 

that the Attorney General delegate his 

functions under chapter 154 to some 

other official or division within the 

Department of Justice that the 

commenters believed would be free of 

the supposed conflict of interest. 

Commenters also proposed that the 

Attorney General only exercise his 

certification responsibilities on the basis 

of very specific, inflexible criteria that 

would leave no room for judgment or 

discretion by the Attorney General in 

evaluating a given State system under 

chapter 154. 

As an initial matter, the Attorney 

General cannot refrain from carrying out 

the functions assigned to him by chapter 

154: The law requires him to discharge 

those functions. Congress assigned the 

certification function to the Attorney 

General after having heard arguments 

concerning a purported conflict of 

interest similar to those now advanced 

by the commenters. See 28 U.S.C. 

2265(a)(1); Habeas Reform: The 

Streamlined Procedures Act: Hearing 

Before the S. Comm. on the Judiciary, 

109th Cong. 26–27 (2005); see also id. at 

54 (written statement of Professor Eric 

M. Freedman on behalf of the American 

Bar Association) (‘‘The Attorney General 

is the nation’s chief prosecutor and thus 

is hardly an appropriate officer to 

decide whether a state has kept its part 

of the ‘opt in’ bargain.’’). Moreover, the 

enactment of chapter 154 is not the first 

time that Congress has assigned to the 

Attorney General the task of evaluating 

State efforts to provide attorney 

representation to petitioners convicted 

of a capital crime. For example, the 

Innocence Protection Act of 2004, 

Public Law 108–405, Title IV, Subtitle 

B, 118 Stat. 2260, 2286–92 (2004) 

(‘‘IPA’’), contemplates the 

administration by the Attorney General 

of a program to improve the quality of 

legal representation provided to 

indigent petitioners in State capital 

cases, including the making of grants to 

States willing to implement federally 

prescribed capital counsel standards, 

continuing oversight of the capital 

defense systems of States that accept 

funding, and negotiation or direction by 

the Attorney General of corrective 

actions needed to secure compliance by 

those States with the federally 

prescribed capital counsel requirements. 

See 42 U.S.C. 14163, 14163c–14163d; 

151 Cong. Rec. E2640 (daily ed. Dec. 22, 

2005) (extension of remarks of Rep. 

Flake) (noting as precedent for chapter 

154 responsibilities of the Attorney 

General that ‘‘[j]ust last year . . . 

Congress assigned the Attorney General 

to evaluate State . . . capital counsel 

systems’’ under the IPA). 

More fundamentally, there is no 

sound basis for the claim that the 

Attorney General has a conflict of 

interest that would preclude him from 

fairly carrying out the functions 

assigned to him by Congress. The 

criteria the Attorney General will apply 

in deciding whether a State has satisfied 

the chapter 154 requirements do not 

control what will be deemed 

constitutionally effective or ineffective 

assistance of counsel in the criminal 

cases for which the Attorney General is 

responsible. Addressing questions 

concerning what constitutes 

constitutionally effective assistance 

calls for an assessment of an attorney’s 

performance in a given case, and as 

already noted, the Attorney General will 

not make such independent assessments 

in the context of making certification 

decisions under chapter 154, which call 

instead for an evaluation of general 

competency standards put in place by a 

State mechanism. Hence, there is no 

basis to conclude that the 

determinations that the Attorney 

General must make when presented 

with a request for certification of a State 

mechanism would conflict with the 

conduct of the Attorney General’s 

prosecutorial functions. 

Moreover, the functions performed by 

the Attorney General in his criminal law 

enforcement and prosecutorial oversight 

capacities are only part of the broader, 

diverse range of duties he regularly 

performs. The Department, under the 

Attorney General’s supervision, 

administers and carries out programs for 

the improvement of indigent criminal 

defense systems, both generally and 

with respect to capital cases in 

particular. See, e.g., Bureau of Justice 

Assistance, U.S. Dep’t of Justice, 

Answering Gideon’s Call: Improving 

Indigent Defense Delivery Systems, FY 

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58164 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

2012 Competitive Grant Announcement 

(April 4, 2012); Bureau of Justice 

Assistance, U.S. Dep’t of Justice, Capital 

Case Litigation Initiative, FY 2011 

Competitive Grant Announcement (Jan. 

11, 2011); Bureau of Justice Assistance, 

U.S. Dep’t of Justice, Capital Case 

Litigation Initiative, http://www.bja.gov/ 

ProgramDetails.aspx?Program_ID=52 

(last visited July 23, 2013) (further 

information on capital case litigation 

initiative); U.S. Dep’t of Justice, The 

Access to Justice Initiative, http://

www.justice.gov/atj (last visited July 23, 

2013) (home page for the Department’s 

Access to Justice Initiative, which seeks 

to ‘‘increase access to counsel and legal 

assistance,’’ including by advancing 

‘‘new statutory, policy, and practice 

changes that support development of 

quality indigent defense’’). The Attorney 

General leads and convenes the Federal 

Interagency Reentry Council, a 

government-wide effort to improve 

employment, housing, treatment, and 

educational opportunities for 

individuals who were previously 

incarcerated. The Department of Justice 

also handles much of the Federal 

government’s civil litigation under the 

Attorney General’s authority, in some 

cases serving as or representing the 

plaintiff and in others serving as or 

representing the defendant. In addition, 

the Attorney General oversees the 

Department’s Community Relations 

Service, which provides violence 

prevention and conflict resolution 

services to State and local governments, 

private organizations, and community 

groups. These examples demonstrate 

that the Attorney General is accustomed 

to appropriately balancing varied and 

occasionally competing interests in the 

exercise of his duties. Thus, even if 

carrying out the certification function 

assigned to him by law did affect the 

Department’s criminal enforcement 

efforts (though it does not), the 

commenters have made no persuasive 

showing that the Attorney General 

would be unable to fairly evaluate a 

State’s certification request. 

In addition, discharge of the required 

chapter 154 functions by the Attorney 

General is consistent with Rule 1.7(a)(2) 

of the American Bar Association 

(‘‘ABA’’) Model Rules of Professional 

Conduct (and comparable rules adopted 

by most State supreme courts), which 

provides in relevant part that ‘‘a lawyer 

shall not represent a client if . . . there 

is a significant risk that the 

representation of one or more clients 

will be materially limited by the 

lawyer’s responsibilities to another 

client, a former client or a third person 

or by a personal interest of the lawyer.’’ 

The Attorney General has no 

responsibilities to a client that would 

materially limit the discharge of the 

chapter 154 certification function, 

because the Attorney General’s only 

relevant client is the United States, 

which through Congress has expressly 

directed the discharge of that function 

by law. There is also no reason to 

believe that the Attorney General has 

any responsibility to a ‘‘former client’’ 

or ‘‘third person,’’ or any ‘‘personal 

interest,’’ that would materially impair 

his representation of the United States 

in the discharge of that function. The 

Attorney General has a professional 

obligation to abide by the ‘‘client’s 

decisions concerning the objectives of 

representation,’’ ABA Model Rule 1.2(a), 

making it difficult to conceive how the 

Attorney General could have such a 

disqualifying conflict in representing 

the United States when it is the United 

States that has mandated through its 

laws that the Attorney General carry out 

the chapter 154 certification function. 

Against this background, there is no 

force to the claim of some commenters 

that the Attorney General has an 

inherent conflict of interest in carrying 

out his legal duties under chapter 154— 

which potentially affects defense and 

judicial review functions in criminal 

cases for which the Attorney General is 

not responsible—because the Attorney 

General oversees the conduct of 

prosecutions in Federal criminal cases, 

among other duties. Modification of the 

rule to incorporate the remedial 

measures proposed by these 

commenters is accordingly not 

necessary because the underlying 

assumption of a conflict of interest is 

not well-founded. Indeed, the specific 

remedy suggested by many of these 

commenters, that the Attorney General 

address the purported conflict of 

interest by delegating the certification 

function to the Department’s Inspector 

General, would itself pose problems. 

Among others, the task of certifying 

State capital counsel mechanisms falls 

outside the current duties, 

responsibilities, and expertise of the 

Inspector General and his staff, which 

focus on fraud, waste, and abuse in the 

Department of Justice, see 5 U.S.C. App. 

3 sections 4, 8E. 

Relationship to Prior Judicial 

Interpretation 

Some commenters criticized the rule 

as inconsistent with the judicial 

construction of chapter 154. However, 

prior judicial interpretation of chapter 

154, much of which remains generally 

informative, supports many features of 

this rule, as this preamble documents. 

To the extent the rule approaches 

certain matters differently from some 

past judicial decisions, there are reasons 

for the differences. 

One reason judicial decisions could 

not consistently be followed on some 

matters in this rule is that the decisions 

were not in accord with each other on 

these matters. For example, as discussed 

below in connection with § 26.22(b) of 

the rule, some district court decisions 

regarded prior capital litigation 

experience as necessary to qualify for 

appointment under chapter 154, but 

appellate precedent and other authority 

permit a more flexible approach that 

would understand capital litigation 

experience to be relevant and often 

helpful, but not indispensable. 

Textual changes that Congress has 

made in chapter 154 are another reason 

for differences from prior judicial 

decisions under chapter 154. For 

example, as explained below in the 

analysis statement accompanying 

§ 26.21 in this rule, chapter 154 

originally had separate provisions for 

State systems bifurcating direct and 

collateral review (28 U.S.C. 2261 (2000) 

(amended 2006)) and State ‘‘unitary 

review’’ systems in which collateral 

claims may be raised in the course of 

direct review (28 U.S.C. 2265 (2000) 

(amended 2006)). Both sets of 

provisions included language specifying 

the form that State standards 

establishing the required capital counsel 

mechanism must take. The general 

provisions in former section 2261(b) 

required that a State establish the 

mechanism ‘‘by statute, rule of its court 

of last resort, or by another agency 

authorized by State law.’’ The 

provisions in section 2265(a) for unitary 

review procedures required that a State 

establish the mechanism ‘‘by rule of its 

court of last resort or by statute.’’ Both 

sections said that ‘‘[t]he rule of court or 

statute must provide standards of 

competency for the appointment of . . . 

counsel.’’ 

In Ashmus v. Calderon, the court 

concluded that the State unitary review 

procedure under review in that case did 

not satisfy chapter 154, in part because 

the State’s qualification standards for 

appointment of capital counsel were not 

set out in a ‘‘rule of court’’ in the 

relevant sense. 123 F.3d 1199, 1207–08 

(9th Cir. 1997). This particular ground 

for denying chapter 154 certification no 

longer exists under the current 

formulation of chapter 154. The 

amendments to chapter 154 enacted in 

2006 replaced the separate provisions 

for bifurcated and unitary review 

procedures with uniform requirements 

that apply to all State systems and 

eliminated the former language 

specifying that the relevant standards 

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were to be provided by rule of court or 

statute. 

This rule accordingly does not 

include a requirement that relevant 

State standards must be adopted by any 

particular means, notwithstanding the 

judicial application of such a 

requirement when the statutory 

language was different. While States 

still must establish capital counsel 

mechanisms that satisfy the chapter 154 

requirements to be certified, there is no 

requirement that they do so in any 

particular form, such as only through 

standards set out in rules of court. So 

long as there has been an authoritative 

adoption or articulation by a State of 

binding standards, and those standards 

are not otherwise negated or overridden 

by State policy, the standards are 

‘‘established’’ for the purposes of 

chapter 154. 

Other differences reflect the change in 

responsibility for chapter 154 

certification under the 2006 

amendments. Prior to those 

amendments, requests to invoke the 

chapter 154 procedures were presented 

to Federal habeas courts in the context 

of particular State capital cases they 

were reviewing. Courts in that posture 

considered both whether the State had 

established a mechanism satisfying 

chapter 154, and if so, whether counsel 

for the petitioner in the particular case 

before them had been provided in full 

compliance with that mechanism. 

Hence, if counsel had not been 

appointed on collateral review in a 

particular case, or if the attorney 

provided did not satisfy the State’s 

competency standards for such 

appointments, for example, the courts 

could find chapter 154 inapplicable on 

that basis, regardless of whether the 

State had established a capital counsel 

mechanism that otherwise satisfied the 

requirements of chapter 154. See, e.g., 

Tucker v. Catoe, 221 F.3d 600, 604–05 

(4th Cir. 2000) (‘‘We accordingly 

conclude that a state must not only 

enact a ‘mechanism’ and standards for 

postconviction review counsel, but 

those mechanisms and standards must 

in fact be complied with before the state 

may invoke the time limitations of 28 

U.S.C. 2263.’’). 

The result in such a case is not 

necessarily different under the current 

formulation of chapter 154, but the 

route to that result is not the same. In 

entertaining a State’s request for chapter 

154 certification, the Attorney General 

has no individual case before him and 

is not responsible for determining 

whether a State has complied with its 

mechanism in any particular case. 

Rather, as discussed above, 28 U.S.C. 

2261(b)(1) assigns to the Attorney 

General the general certification 

function under chapter 154, which 

makes him responsible for determining 

whether a mechanism has been 

established by the State and whether the 

State provides standards of competency. 

If the State mechanism is certified, 

appointment of counsel pursuant to the 

certified mechanism (absent waiver or 

retention of counsel or a finding of nonindigence) continues to be a further 

condition for the applicability of 

chapter 154. But whether that has 

occurred in any individual case is, 

under 28 U.S.C. 2261(b)(2), a matter 

within the province of the Federal 

habeas court to which the case is 

presented, not the Attorney General. 

Section 26.20—Purpose 

A comment on this section as drafted 

in the proposed rule objected that it did 

not mention the condition for chapter 

154’s applicability appearing in 28 

U.S.C. 2261(b)(2). While the section 

2261(b)(2) requirement was noted in the 

preamble to the proposed rule, see 76 

FR at 11706, 11710–11, the objection is 

well-taken. The final text of § 26.20 

reflects explicitly that the applicability 

of the Federal habeas corpus review 

procedures of 28 U.S.C. 2262, 2263, 

2264, and 2266 in a capital case 

depends on both certification of the 

State’s postconviction capital counsel 

mechanism, as provided in 28 U.S.C. 

2261(b)(1), and appointment of counsel 

pursuant to the certified mechanism 

(absent waiver or retention of counsel or 

a finding of non-indigency), as provided 

in 28 U.S.C. 2261(b)(2). 

Section 26.21—Definitions 

Appointment 

Many comments raised the concern 

that the proposed rule did not address 

the timing of counsel appointment. The 

concern reflected the general 

importance of the timely availability of 

counsel in the context of a complex and 

difficult type of litigation and specific 

issues arising from chapter 154’s special 

time limit for Federal habeas filing. 

Compare 28 U.S.C. 2263 (general 180- 

day time limit under chapter 154) with 

28 U.S.C. 2244(d) (one-year time limit 

otherwise applicable). 

The Department believes that the 

concern reflected in these comments is 

well-founded. Chapter 154 involves a 

quid pro quo arrangement under which 

appointment of counsel for indigents is 

extended to postconviction proceedings 

in capital cases, and in return, 

subsequent Federal habeas review is 

carried out with generally more limited 

time frames and scope. See, e.g., H.R. 

Rep. No. 104–23, at 10 (1995) (noting 

the chapter’s ‘‘quid pro quo arrangement 

under which states are accorded 

stronger finality rules on Federal habeas 

review in return for strengthening the 

right to counsel for indigent capital 

defendants’’). The Powell Committee 

report, from which this essential feature 

of chapter 154 derives, explained that 

‘‘[c]apital cases should be subject to one 

complete and fair course of collateral 

review in the state and federal system 

. . . with the assistance of competent 

counsel for the defendant’’ and that 

‘‘[t]he belated entry of a lawyer, under 

severe time pressure, does not do 

enough to ensure fairness.’’ 135 Cong. 

Rec. 24695 (1989). 

The quid pro quo arrangement of 

chapter 154 requires provision of 

counsel to capital petitioners in State 

postconviction proceedings in return for 

Federal habeas review carried out with 

generally more limited time frames and 

scope. Against this background, not 

every conceivable provision for making 

postconviction counsel available, 

however belatedly—e.g., only after the 

deadline for pursuing State 

postconviction proceedings had passed; 

or only after the expiration of section 

2263’s time limit for Federal habeas 

filing; or only after such delay that the 

time available for preparing for and 

pursuing either State or Federal 

postconviction review had been 

seriously eroded—can logically be 

regarded as providing for appointment 

of counsel within the meaning of 

chapter 154. Consistent with such 

considerations, judicial decisions under 

chapter 154 that addressed the matter 

concluded that the State mechanism 

must provide for timely appointment of 

counsel. See, e.g., Brown v. Puckett, No. 

3:01CV197–D, 2003 WL 21018627, at *3 

(N.D. Miss. Mar. 12, 2003) (‘‘The timely 

appointment of counsel at the 

conclusion of direct review is an 

essential requirement in the opt-in 

structure. Because the abbreviated 180- 

day statute of limitations begins to run 

immediately upon the conclusion of 

direct review, time is of the essence. 

Without a requirement for the timely 

appointment of counsel, the system is 

not in compliance.’’); Ashmus v. 

Calderon, 31 F. Supp. 2d 1175, 1187 

(N.D. Cal. 1998) (‘‘The quid pro quo 

would be hollow indeed if compliance 

by the state was satisfied by merely 

offering and promising to appoint 

competent counsel with no element of 

timeliness.’’); Hill v. Butterworth, 941 F. 

Supp. 1129, 1147 (N.D. Fla. 1996) 

(‘‘[T]he Court holds that any offer of 

counsel pursuant to Section 2261 must 

be a meaningful offer. That is, counsel 

must be immediately appointed after a 

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capital defendant accepts the state’s 

offer of postconviction counsel.’’), rev’d 

on other grounds, 147 F.3d 1333 (11th 

Cir. 1998). 

The supplemental notice of proposed 

rulemaking accordingly proposed 

specifying more clearly that an 

adequately functioning mechanism, as 

described in chapter 154, will 

necessarily incorporate a policy for the 

timely appointment of competent 

counsel. See 77 FR at 7560–61. Section 

26.21 of the final rule does so by adding 

a definition of appointment that clarifies 

that it entails ‘‘provision of counsel in 

a manner that is reasonably timely in 

light of the time limitations for seeking 

State and Federal postconviction review 

and the time required for developing 

and presenting claims in the 

postconviction proceedings.’’ See 

American Bar Association, ABA 

Guidelines for the Appointment and 

Performance of Defense Counsel in 

Death Penalty Cases, at 127 (rev. ed. 

Feb. 2003), available at http://

www.americanbar.org/content/dam/

aba/migrated/legalservices/downloads/

sclaid/deathpenaltyguidelines2003.

authcheckdam.pdf (‘‘ABA Guidelines’’) 

(increasingly intertwined nature of State 

and Federal habeas proceedings means 

that ‘‘although the AEDPA deals strictly 

with cases being litigated in federal 

court, its statute of limitations provision 

creates a de facto statute of limitations 

for filing a collateral review petition in 

state court’’). 

Nevertheless, two comments 

responding to the supplemental notice 

objected to this change from the 

proposed rule as inconsistent with the 

current version of chapter 154, which 

provides that ‘‘[t]here are no 

requirements for certification or for 

application of this chapter other than 

those expressly stated in this chapter.’’ 

28 U.S.C. 2265(a)(3). However, the 

definition of appointment in § 26.21 

does not add to the express 

requirements for certification. Rather, as 

explained above, it reflects a contextual 

understanding of chapter 154’s express 

requirement of a mechanism for 

appointment of competent 

postconviction capital counsel, see 28 

U.S.C. 2265(a)(1), to encompass some 

standard for affording postconviction 

representation in a manner that is 

reasonably timely in light of the relevant 

postconviction review time limitations 

and the time required for developing 

and presenting claims. See OLC 

Opinion at *8 (‘‘In reasonably 

construing an ambiguous term in a 

statute that he is charged with 

administering, the Attorney General 

would not be adding to the 

requirements for certification . . . [but] 

merely would be implementing an 

express statutory provision . . . just as 

agency officials regularly do in other 

contexts’’ under Chevron, U.S.A., Inc. v. 

Natural Res. Defense Council, Inc., 467 

U.S. 837, 844 (1984).). 

Other features of chapter 154 provide 

additional textual support for the final 

rule’s definition of ‘‘appointment’’ and 

confirm it is consistent with the express 

statutory scheme, including section 

2265(a)(3). Section 2262(a), for instance, 

provides for an automatic stay of 

execution, by application to a Federal 

habeas court, upon entry of an order 

appointing counsel. If chapter 154 

permitted a State to delay appointment 

of counsel, an execution that is 

scheduled for a date shortly after the 

denial of a prisoner’s direct appeal 

could occur before the prisoner receives 

the State postconviction counsel and the 

automatic stay that chapter 154 

promises. Likewise, chapter 154 

expressly contemplates that States will 

establish, and the Attorney General will 

review, standards expected to produce 

competent representation by appointed 

counsel. 28 U.S.C. 2265(a)(1)(A), (C). 

Judgments concerning what competency 

standards are needed may well vary 

based on expectations about the amount 

of time an attorney will have to perform 

requisite tasks. The need for counsel to 

be appointed in a reasonably timely 

fashion, especially in light of the 

relevant statutory deadlines for seeking 

habeas relief, sets such expectations and 

enables the judgments that the statutory 

framework requires. 

The two concerned commenters also 

cite legislative history evidence, 

specifically two floor statements 

criticizing the Ninth Circuit’s decision 

in Spears v. Stewart, 283 F.3d 992 (9th 

Cir. 2001), in support of their objection 

to the articulation in this rule of chapter 

154’s requirement that appointments be 

made in a reasonably timely fashion. 

See, e.g., 152 Cong. Rec. S1625 (daily 

ed. Mar. 2, 2006) (statement of Sen. Kyl, 

the sponsor of the amendment, 

including that it ‘‘forbids creation of 

additional requirements not expressly 

stated in the chapter, as was done in the 

Spears case’’); 151 Cong. Rec. E2639 

(daily ed. Dec. 22, 2005) (extension of 

remarks of Rep. Flake). However, the 

legislators’ criticism of the Spears 

decision does not support the 

commenters’ objection to the rule’s 

articulation of chapter 154’s timeliness 

requirement. Spears addressed an issue 

concerning the timing of appointment of 

capital collateral counsel in two 

contexts, finding first that a rule 

adopted by the Arizona Supreme Court 

did adequately provide for timely 

appointment of counsel, but then 

declining to apply the chapter 154 

Federal habeas review procedures in 

that particular case on the ground that 

counsel was not appointed within the 

time frame called for by the mechanism. 

Compare Spears, 283 F.3d at 1017 (‘‘We 

conclude that the Arizona statutory 

mechanism for the appointment of 

postconviction counsel [requiring 

appointment within 15 days of notice 

that the conviction had become final] 

. . . offered counsel to all indigent 

capital defendants . . . in a timely 

fashion.’’), with id. at 1018–19 (holding 

that chapter 154 did not apply ‘‘in 

Petitioner’s case’’ because his attorney 

was appointed over a year after the 

mechanism’s deadline). The object of 

the dissatisfaction expressed in the floor 

statements upon which the two 

commenters rely was neither the 

positive determination in Spears 

regarding the need for a timing 

component in a State’s mechanism nor 

the adequacy of Arizona’s timing 

provision for purposes of chapter 154, 

but rather the denial to the State of the 

benefits of chapter 154 in that 

individual case. See 152 Cong. Rec. 

S1625 (daily ed. Mar. 2, 2006) 

(statement of Sen. Kyl); 151 Cong. Rec. 

E2639–40 (daily ed. Dec. 22, 2005) 

(extension of remarks of Rep. Flake). 

The Attorney General’s current role 

under chapter 154 parallels that of the 

Spears court in making the first of these 

two determinations—whether the 

mechanism in force in the State 

adequately provides for the reasonably 

timely appointment of counsel. Nothing 

in the present rule would bar the 

Attorney General from approving, as the 

Spears court did, a State mechanism 

that provides for timely provision of 

counsel. Whether and in what 

circumstances a delay in appointment of 

counsel would affect chapter 154’s 

applicability in an individual case may 

be considered by Federal habeas courts 

in the exercise of their function under 

28 U.S.C. 2261(b)(2), and is not a 

question that the statute assigns to the 

Attorney General. 

In any event, courts ordinarily give 

floor statements, even statements made 

by the sponsor of a bill or amendment, 

relatively limited weight in analyzing 

Congress’s intent. See, e.g., Garcia v. 

United States, 469 U.S. 70, 76 (1984). 

This is appropriate in the case of the 

legislation that added section 2265(a)(3) 

to chapter 154 because the commenters 

principally rely on views expressed by 

a Senator that were not included in the 

bill’s conference report, compare H.R. 

Rep. No. 109–333, at 109–10 (2005) 

(Conf. Rep.) (making no reference to the 

timing of appointments, and identifying 

not Spears, but a different case that 

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involved a different issue as being 

‘‘overruled’’ by the bill’s provisions), 

with 152 Cong. Rec. S1625 (daily ed. 

Mar. 2, 2006) (statement of Sen. Kyl). 

See Ctr. for Sci. in the Pub. Interest v. 

Regan, 802 F.2d 518, 523 (D.C. Cir. 

1986) (noting that ‘‘the 

contemporaneous remarks of a single 

legislator, even a sponsor, are not 

controlling in legislative history 

analysis; rather, those remarks must be 

considered along with other statements 

and published committee reports’’). 

Thus, even if the commenters’ reading 

of the floor statements’ criticism of 

Spears were correct, the statements 

should not be treated as controlling or 

as indicative of congressional intent 

contrary to the rule’s clarification of a 

requirement for reasonably timely 

appointment of counsel. 

With respect to a separate but related 

issue, one commenter suggested that 

§ 26.21’s definition of ‘‘appointment’’ to 

encompass a timeliness element is 

unnecessary because courts may 

alternatively address problems under 

chapter 154 resulting from delay in 

providing postconviction counsel by 

adjusting the operation of the relevant 

time limits for filing. The commenter 

cited Rhines v. Weber, 544 U.S. 269 

(2005), and In re Morgan, 50 Cal. 4th 

932, 237 P.3d 993 (2010), for support. 

As an initial matter, it is unclear to 

what extent these cited cases apply to 

the issue at hand. Rhines, for example, 

involved stay-and-abey procedures that 

may not be available to petitioners 

under chapter 154, see 28 U.S.C. 

2264(b), and Morgan focused on the 

viability of pro se ‘‘shell’’ State habeas 

petitions—a practice that, even if it were 

firmly established and accepted by both 

State and Federal courts, raises 

significant concerns in the chapter 154 

context. As a practical matter, for 

example, not every State petitioner will 

be in a position to understand the 

necessity for filing such a petition and 

able to file a petition successfully. 

Moreover, chapter 154 contemplates 

that in exchange for substantial benefits 

on Federal habeas review, States will 

provide not the opportunity for 

petitioners to file pro se State habeas 

petitions, but the opportunity for 

petitioners to file counseled State 

habeas petitions. See Mills v. Anderson, 

961 F. Supp. 198, 201 n.4 (S.D. Ohio 

1997) (questioning whether State 

mechanism that provides for 

appointment of counsel only after filing 

of pro se petition is inadequate under 

chapter 154). Thus, the relevance of the 

procedures discussed in Rhines and 

Morgan is uncertain. Even if available in 

this context, they would at most affect 

what might be thought necessary to 

reasonably assure the timely 

appointment of counsel. The possible 

existence of such procedures would not 

undermine the conclusion that the 

‘‘appointment’’ required under chapter 

154 must be made in a reasonably 

timely manner, as reflected in the 

definition in § 26.21. 

Some commenters approved of the 

rule’s specification of the requirement 

for timely appointment but stated that it 

should provide a more definite period of 

time (e.g., a specific number of days or 

weeks) within which State mechanisms 

must appoint counsel. The Department 

believes, however, that States must have 

significant latitude in designing 

mechanisms for ensuring that 

competent counsel are appointed, see 

OLC Opinion at *12–13, and this rule 

therefore does not define timeliness in 

terms of a specific number of days or 

weeks within which counsel is to be 

provided. Instead, a State need only 

demonstrate that it has established a 

mechanism for affording counsel in a 

manner that is reasonably timely, in 

light of the time limits for seeking State 

and Federal collateral review and the 

effort involved in the investigation, 

research, and filing of effective habeas 

petitions, which protect a petitioner’s 

right to meaningful habeas review. 

Additionally, some commenters urged 

that the rule should require that 

appointment of postconviction capital 

counsel be timely in relation to the 

petitioner’s conviction, not just in 

relation to the time limits for seeking 

State and Federal postconviction review 

and the time required for preparing 

postconviction claims. The rationale 

offered for this proposal was that direct 

review of the judgment in capital cases, 

occurring between the end of the trial 

proceedings and the commencement of 

postconviction proceedings, may take a 

long time, and that evidence and 

records that would be useful to the 

defense in postconviction proceedings 

may be lost in the meantime. While the 

Department does not question the value 

of efforts to avoid spoliation of 

evidence, consideration can be given 

only within the statutory framework; to 

the extent these commenters 

contemplated requiring that 

postconviction counsel be appointed 

even before the conclusion of direct 

review, such a mandate would appear to 

go beyond chapter 154’s requirements 

for appointment of counsel ‘‘in State 

postconviction proceedings.’’ 28 U.S.C. 

2265(a)(1); see id. 2261(b)(1). 

Appropriate State Official 

Section 26.21 of the rule, in part, 

defines an ‘‘appropriate State official’’ 

who may request chapter 154 

certification under 28 U.S.C. 2265(a)(1) 

to mean the State attorney general or the 

State chief executive if the State 

attorney general does not have 

responsibility for Federal habeas corpus 

litigation. Some commenters objected to 

the rule’s designation of the State 

attorney general as the appropriate 

official to request chapter 154 

certification on grounds of conflict of 

interest, lack of relevant knowledge, 

interference with State discretion, and 

exceeding statutory authority. 

The comments received provided no 

persuasive reasons for changing the 

definition of ‘‘appropriate State official’’ 

in § 26.21. First, the objection that the 

State attorney general’s litigation 

interests may lead him to make unsound 

judgments whether his State has 

satisfied chapter 154’s requirements 

conflates the role of applicant and that 

of decision-maker. Under this rule, the 

State attorney general is authorized to 

request certification, but it will be the 

U.S. Attorney General who makes a 

wholly independent determination of 

whether certification is warranted. In 

making this determination, the U.S. 

Attorney General will consider any 

supporting or contrary information or 

views that any interested entity may 

choose to submit through the public 

comment procedure set out in § 26.23 of 

the rule, in addition to whatever the 

State attorney general may offer on the 

question. 

Second, designation of the State 

attorney general as the ‘‘appropriate 

State official’’ is consistent with both 

the original language of chapter 154 and 

the 2006 amendments. Prior to the 2006 

amendments, Federal habeas courts 

determined whether chapter 154’s 

requirements were satisfied, so State 

attorneys general responsible for Federal 

habeas corpus litigation in capital cases 

were able to seek determinations that 

the State capital counsel mechanism 

satisfied the chapter 154 requirements 

as part of their litigation functions. The 

court, not the State attorney general, 

was the decision-maker on that 

question, and the court’s decision was 

informed by hearing the views of others 

with opposed interests, in addition to 

those of the State attorney general. The 

transfer of the chapter 154 certification 

function from the Federal courts to the 

U.S. Attorney General does not 

materially change this framework. The 

State attorney general is authorized to 

seek certification; the U.S. Attorney 

General, not the State attorney general, 

is the decision-maker; and the U.S. 

Attorney General will consider any 

views proffered by others as discussed 

above. 

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Third, the Attorney General’s 

decisions regarding chapter 154 

certification are subject to de novo 

review by the D.C. Circuit Court of 

Appeals, as provided in 28 U.S.C. 

2265(c), and seeking such review would 

commonly be within the litigation 

authority of the State attorney general, 

regardless of which official had sought 

the initial determination from the U.S. 

Attorney General. It would be odd to 

deem the State attorney general an 

inappropriate official to seek chapter 

154 certification from the U.S. Attorney 

General in the first instance, where the 

statutes interpose no obstacle to State 

attorneys general seeking the same 

determination from the D.C. Circuit at a 

later stage. 

Fourth, the objection regarding lack of 

relevant knowledge by the State 

attorney general is also unpersuasive. 

This objection in the comments appears 

to be premised largely on the belief that 

States seeking certification will 

normally submit with their request a set 

of comprehensive data that demonstrate 

the operation of the State’s collateral 

review system in capital cases, 

including such matters as the amount of 

awards to defense counsel for litigation 

expenses in particular cases, of which 

the State attorney general might in some 

cases be unaware. The proposition that 

the Attorney General must conduct such 

a case-by-case review under chapter 154 

is not well-founded, for reasons 

discussed earlier in this preamble. 

Additionally, the Department finds it 

significant that none of the commenters 

identified a person in a State likely to 

have better knowledge than the State 

attorney general or chief executive 

concerning matters relevant to 

certification. Thus, even if it is accepted 

that a State attorney general may not 

have perfectly complete information in 

every instance, there is no basis to 

believe that there is an alternative 

official or individual better suited to the 

task. Moreover, if at times there is 

information relevant to the U.S. 

Attorney General’s determination that 

the State attorney general may not have, 

any interested person is free to provide 

such information through the public 

comment procedure for certification 

requests set out in § 26.23(b)–(c) in this 

rule. 

Finally, the objection in the present 

comments regarding potential conflict 

with State law reflects a 

misunderstanding of the rule, which 

does not preempt State law. If State law 

were to prohibit a State attorney general 

from requesting chapter 154 

certification, then the State attorney 

general would be barred by State law 

from making such a request. That has no 

bearing on the formulation of § 26.21, 

which only defines the class of State 

officials whose request for chapter 154 

certification triggers the requirement 

under 28 U.S.C. 2265(a)(1) that the U.S. 

Attorney General make a chapter 154 

certification decision. Moreover, any 

concern about potential conflict with 

State law is purely speculative. No State 

submitted comments on this rule stating 

that it has prohibited, wishes to 

prohibit, or may prohibit the State 

attorney general from requesting chapter 

154 certification on behalf of the State. 

Section 26.22(a)—Statutory 

Requirements Concerning 

Appointments 

Section 26.22(a) tracks chapter 154’s 

provisions concerning the procedures 

for appointment of counsel, appearing 

in 28 U.S.C. 2261(c)–(d). Some 

commenters stated that the rule should 

be modified to provide additional 

definition concerning these procedures, 

such as specifying in greater detail what 

constitutes a sufficient offer of counsel, 

or what exactly will or will not be 

deemed a valid waiver of counsel, under 

these provisions. 

The comments received did not 

provide persuasive reasons for 

addressing additional interpretive issues 

in this rule. Chapter 154’s legal directive 

to the Attorney General regarding 

rulemaking is that the Attorney General 

‘‘shall promulgate regulations to 

implement the certification procedure 

under [section 2265(a)],’’ 28 U.S.C. 

2265(b). Some of the specific matters 

raised in the comments have been 

addressed by courts in prior decisions 

relating to chapter 154, but there is no 

requirement that the present rule 

attempt to provide a comprehensive 

restatement or synthesis of all past 

judicial decisions under the chapter. 

Though the Attorney General has 

provided further definition of the 

chapter 154 requirements in § 26.22 of 

this rule, in the interest of affording 

additional guidance regarding what 

must be done to qualify for certification 

under chapter 154 and what criteria will 

be applied in making certification 

decisions, that does not oblige the 

Attorney General to go further and 

attempt to resolve in this rule (even if 

it were possible) all possible questions 

that might arise in the interpretation 

and application of chapter 154’s 

requirements. 

It is uncertain whether particular 

interpretive questions raised by the 

commenters will prove to be significant 

issues in the context of the capital 

counsel systems of States that actually 

apply for certification hereafter. If they 

do not, then little will have been gained 

by the Attorney General’s attempt to 

resolve them in advance. If they do 

prove to be significant issues, 

considering them in the concrete setting 

of State systems whose certification is 

requested is likely to be more conducive 

to sound resolutions than trying to 

address them in the abstract. 

Section 26.22(b)–(c)—General Issues 

Paragraphs (b) and (c) in § 26.22 

articulate the requirements relating to 

counsel competency and compensation. 

Each paragraph consists of 

‘‘benchmark’’ provisions identifying 

standards that presumptively will be 

considered adequate (§ 26.22(b)(1) for 

competency and § 26.22(c)(1) for 

compensation), followed by general 

provisions for assessing State standards 

that take other approaches (§ 26.22(b)(2) 

for competency and § 26.22(c)(2) for 

compensation). 

The text of the rule published in the 

notice of proposed rulemaking stated 

without qualification that the Attorney 

General will approve State standards 

satisfying the benchmark provisions. 

Many commenters expressed the 

concern that, under the proposed rule, 

the Attorney General could have been 

required to certify a State’s mechanism 

meeting the competence and 

compensation benchmarks, even if it 

could be shown that the mechanism is 

not adequate in the context of the State 

system in which it operates. 

The Department continues to believe 

that State mechanisms that incorporate 

the benchmark standards for 

competency and compensation should 

be adequate. However, the comments 

were persuasive that it is not possible to 

predict with certainty that these 

benchmarks will be adequate in the 

context of every possible State system. 

For example, it is conceivable that a 

State standard authorizing what 

normally should be sufficient 

compensation may not in fact make 

competent lawyers available for 

appointment in postconviction 

proceedings, considering the context of 

a particular State system and its 

distinctive market conditions for legal 

services. Cf. Baker v. Corcoran, 220 F.3d 

276, 285–86 (4th Cir. 2000) (considering 

per-attorney overhead costs and 

effective compensation rates among 

other factors in finding compensation 

scheme inadequate under chapter 154). 

The final rule has accordingly been 

modified, as discussed in the 

supplemental notice of proposed 

rulemaking, to provide that State 

standards satisfying the benchmarks for 

competency and compensation are 

presumptively adequate, thereby 

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specific circumstances that may 

establish the contrary—i.e., that 

standards generally expected to be 

sufficient in most instances are for some 

reason not reasonably likely to lead to 

the timely provision and adequate 

compensation of competent counsel to 

habeas petitioners in a particular State. 

77 FR at 7561. 

Importantly, however, the Department 

found unpersuasive commenters’ 

separate criticism that the proposed rule 

fails to provide for oversight of a State’s 

compliance with a chapter 154 

mechanism that it has established. As 

explained earlier in this preamble, the 

Department remains of the view that 

chapter 154 is correctly read to assign to 

the Federal habeas courts—not to the 

Attorney General—questions concerning 

whether a State has fully complied in a 

given case with the requirements of its 

own established mechanism. 

Section 26.22(b)(1)(i)—Counsel 

Competency Standards Based on 18 

U.S.C. 3599 

Section 26.22(b)(1)(i) in the final rule 

sets forth competency standards 

requiring at least five years of bar 

admission and three years of 

postconviction litigation experience, or 

if a State mechanism so provides, 

allowing appointment for good cause in 

a given case of other counsel whose 

background, knowledge, or experience 

would otherwise enable him or her to 

properly represent the petitioner. 

Section 26.22(b)(1)(i) is based on the 

qualification standards Congress has 

adopted in 18 U.S.C. 3599 for 

appointment of counsel in Federal court 

proceedings in capital cases. The 

formulation of this provision in the final 

rule to require three years of 

postconviction litigation experience 

differs from the corresponding provision 

in the proposed rule, which required 

three years of felony litigation 

experience, without specification of the 

stage or stages of litigation at which the 

experience was obtained. The reasons 

for this change are explained below. 

In response to the proposed rule, 

many commenters suggested that 

postconviction litigation experience 

would be a better measure of 

competency for State postconviction 

proceedings than general felony 

litigation experience because of the 

difficult and unique demands that 

postconviction law and procedure place 

on attorneys who litigate those cases. 

These comments were persuasive. 

In construing chapter 154, some 

courts have concluded that, given the 

complexity of postconviction law and 

procedure, a qualifying mechanism for 

the appointment of competent counsel 

should provide for counsel with 

specialized postconviction litigation 

experience. See, e.g., Colvin-El v. Nuth, 

No. Civ.A. AW 97–2520, 1998 WL 

386403, at *6 (D. Md. July 6, 1998) 

(‘‘Given the extraordinarily complex 

body of law and procedure unique to 

postconviction review, an attorney 

must, at minimum, have some 

experience in that area before he or she 

is deemed ‘competent.’ ’’); see also Jon 

B. Gould & Lisa Greenman, Report to the 

Committee on Defender Services, 

Judicial Conference of the United States: 

Update on the Cost and Quality of 

Defense Representation in Federal 

Death Penalty Cases 88 (Sep. 2010) 

(noting the view of postconviction 

specialists that there is ‘‘little time 

available for inexperienced counsel to 

‘learn the ropes,’ and no safety net if 

they fail’’). Several States have also 

incorporated this guidance into their 

appointment standards. See, e.g., La. 

Admin. Code tit. 22, 915(D)(1)(e)(i) 

(requiring that qualified postconviction 

lead counsel shall ‘‘have at least five 

years of criminal postconviction 

litigation experience.’’); Miss. R. App. P. 

22(d)(5) (generally requiring prior 

experience in at least one 

postconviction proceeding for 

appointment); Mo. Ann. Stat. 

§ 547.370(2)(3) (requiring at least one of 

two appointed counsel to have 

‘‘participated as counsel or co-counsel 

to final judgment in at least five 

postconviction motions involving class 

A felonies in either state or federal trial 

courts’’). The adaptation of the section 

3599 standard in the final rule 

accordingly specifies three years of 

postconviction litigation experience, 

rather than three years of any sort of 

felony litigation experience as in the 

proposed rule. 

The formulation of this benchmark in 

the final rule to require postconviction 

experience does not take issue, as some 

commenters claimed, with Congress’s 

judgments regarding counsel 

competency standards that are likely to 

be adequate. Rather, both the proposed 

and final versions reflect necessary 

adaptation of the standards of 18 U.S.C. 

3599 for use in chapter 154 certification 

decisions. In defining relevant prior 

litigation experience, 18 U.S.C. 3599(b) 

and (c) deem prior trial experience 

relevant for trial appointments, and 

prior appellate experience relevant for 

appointments ‘‘after judgment.’’ The 

statute does not provide an experience 

requirement tailored specifically to 

postconviction proceedings, having no 

separate specification about the 

experience required for appointments to 

provide representation ‘‘after judgment’’ 

in postconviction proceedings as 

opposed to representation ‘‘after 

judgment’’ on appeal. If section 3599’s 

standards were transcribed as literally 

as possible in § 26.22(b)(1)(i), the rule 

would state that a State competency 

standard is presumptively adequate if it 

normally requires three years of 

appellate experience as a precondition 

for appointment in postconviction 

proceedings. But chapter 154 differs 

from section 3599 in that chapter 154 

deals exclusively with postconviction 

proceedings. Prior postconviction 

litigation experience (as opposed to 

prior appellate experience) is more 

similar in character to the 

postconviction litigation for which an 

attorney would be appointed pursuant 

to chapter 154, and more likely on the 

whole to enable the attorney to provide 

effective representation in 

postconviction proceedings. The rule 

accordingly follows the sensible 

approach of referring to prior 

postconviction litigation experience in 

defining an experience standard that 

will presumptively be considered 

adequate for appointments in the 

postconviction proceedings addressed 

by chapter 154. 

The Criminal Justice Act (CJA) 

guidelines promulgated by the Judicial 

Conference of the United States counsel 

courts to consider postconviction 

experience when making appointments 

under 18 U.S.C. 3599. See 7A Guide to 

[Federal] Judiciary Policy 620.50 (last 

rev. 2011) (‘‘CJA Guidelines’’), available 

at http://www.uscourts.gov.

FederalCourts/AppointmentOfCounsel/

CJAGuidelinesForms/GuideToJudiciary

PolicyVolume7.aspx. To be sure, the 

CJA Guidelines are not absolute 

requirements even in Federal habeas 

matters; the guidelines are phrased in 

permissive terms and elaborate in part 

on 18 U.S.C. 3005, see CJA Guidelines 

620.10.10(a), 620.30, which concern 

appointment of counsel for trial 

representation in Federal capital cases 

and does not apply to appointments for 

collateral proceedings in State capital 

cases. Compare 18 U.S.C. 3005 with 18 

U.S.C. 3599. However, the Department 

does agree that the CJA Guidelines may 

at times help to inform determinations 

as to appropriate standards for 

appointment of counsel, and so 

understood, the Department is 

ultimately convinced that the 

guidelines’ advice to consider 

postconviction experience is sound. The 

final rule therefore avoids the anomaly 

that would result from an overly 

formalistic adaptation of 18 U.S.C. 3599 

and instead carries out the adaptation in 

a manner in which the prior litigation 

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experience requirement is more finely 

attuned to the nature of the 

proceedings—i.e., postconviction 

proceedings—in which appointments 

are to be made. 

The Department was not convinced, 

however, by commenters who asserted 

that this benchmark is deficient (or the 

other counsel competency provisions of 

the rule are deficient) because it does 

not require appointed counsel to have 

prior experience in capital 

postconviction proceedings, or at a 

minimum, some prior capital litigation 

experience generally. While prior 

capital litigation experience is 

frequently a relevant and valuable asset 

for an attorney assigned to handle 

postconviction matters, see Wright v. 

Angelone, 944 F. Supp. 460, 467 (E.D. 

Va. 1996), and is also a factor that the 

CJA Guidelines say courts should 

consider in Federal capital cases, the 

Department was ultimately 

unpersuaded that prior capital litigation 

experience must be required 

categorically as a precondition of 

competence under chapter 154. When 

setting competency requirements for 

appointed counsel in the IPA, see infra, 

Congress has not mandated that 

appointed attorneys invariably have 

such experience. 42 U.S.C. 14163(e). 

Similarly, courts and others have 

recognized that prior capital case 

experience should not be regarded as a 

sine qua non of an appropriate 

competency standard for postconviction 

counsel. See, e.g., Spears, 283 F.3d at 

1013 (‘‘Nothing in [chapter 154] or in 

logic requires that a lawyer must have 

capital experience to be competent.’’); 

ABA Guidelines, at 37 & n. 109 (noting 

that ‘‘[s]uperior postconviction death 

penalty defense representation has often 

been provided by members of the 

private bar who did not have prior 

experience in the field’’ and stating that 

such counsel should be appointed if the 

client will receive high quality legal 

representation). 

Next, and more broadly, some 

commenters contended that any 

competency measure based solely on 

prior experience will necessarily be 

insufficient under chapter 154 and 

criticized the Section 26.22(b)(1)(i) 

benchmark (and § 26.22(b)(2)) on that 

basis. Many of these comments urged 

the view that a State system that relies 

on prior experience must also 

incorporate procedures for monitoring 

counsel performance following 

appointment and for removal of poorly 

performing attorneys. The rule remains 

unchanged in response to these 

comments. 18 U.S.C. 3599 reflects a 

Congressional judgment that sufficiently 

robust experience requirements alone 

can be sufficient. Further, when 

Congress amended chapter 154 in 2006, 

it could have required all State 

mechanisms to adopt monitoring and 

removal provisions similar to those it 

required in the IPA in 2004, see 42 

U.S.C. 14163(e)(2)(E), if it viewed such 

provisions as indispensable, but 

Congress did not do so. Thus, 

monitoring or removal requirements are 

not included in the rule’s benchmark 

based on 18 U.S.C. 3599. But see 

§ 26.22(b)(1)(ii) and discussion infra. 

However, their omission should not 

displace or affect the existence and 

operation of more generally applicable 

monitoring or removal procedures (e.g., 

disbarment) that a State may have in 

place, nor should it in any way 

discourage States from choosing to 

adopt monitoring and removal 

provisions as a discretionary matter. 

One of the comments argued that the 

standards applicable under section 3599 

to Federal habeas counsel should be 

considered inadequate for appointment 

of counsel in State collateral 

proceedings, on the ground that Federal 

habeas counsel has the benefit of the 

antecedent work of State collateral 

counsel in developing and presenting 

claims, and accordingly need lesser 

skills. However, the standards of section 

3599 apply to Federal habeas counsel 

regardless of what prior representation 

or process has or has not been provided 

in State proceedings. Also, the same 

standards apply under section 3599 to 

counsel in Federal court collateral 

proceedings in Federal capital cases 

which, like State court collateral 

proceedings in State capital cases, are 

normally preceded only by trial and 

appeal. 

Some commenters also objected to the 

exception language in the section 3599- 

based benchmark that allows 

appointment of counsel not meeting its 

specific litigation experience 

requirement in some circumstances. 

This exception appropriates the 

standard of 18 U.S.C. 3599(d), which 

allows courts, for good cause, to appoint 

other counsel whose background, 

knowledge, or experience would 

otherwise enable them to properly 

represent the petitioner, with due 

consideration of the seriousness of the 

penalty (i.e., capital punishment) and 

the nature of the litigation. We expect 

that allowing this type of departure will 

not unduly negate or undermine the 

specific experience requirement of this 

aspect of the rule, since its formulation 

limits its applicability to exceptional 

cases. It requires good cause for the 

court to appoint counsel other than 

those satisfying the specific experience 

requirement, and requires the court to 

verify that such counsel have other 

characteristics qualifying them to meet 

the demands of postconviction capital 

punishment litigation. In the rule, as in 

section 3599, the exception recognizes 

that insisting on a rigid application of a 

defined experience requirement could 

debar attorneys who are well-qualified 

on other grounds to represent capital 

petitioners. The comments provided no 

persuasive reason to deny this latitude 

in State court collateral proceedings in 

capital cases, which Congress has 

deemed appropriate for Federal court 

collateral proceedings (and other 

Federal court proceedings) in capital 

cases. See 18 U.S.C. 3599(d); cf. 

Ashmus, 123 F.3d at 1208 (recognizing 

that ‘‘habeas corpus law is complex and 

has many procedural pitfalls’’ but 

concluding that it is not necessary 

under chapter 154 that every lawyer 

have postconviction experience), rev’d 

on other grounds, 523 U.S. 740 (1998). 

Though the Department therefore 

believes there is good reason to retain 

the availability of the exception to 

§ 26.22(b)(1)(i)’s years of experience 

requirement that is drawn from 18 

U.S.C. 3599(d), the rule is permissive, 

not mandatory, on this point. If a State 

decides to omit the exception in its 

mechanism, such that appointed 

attorneys will invariably need to have 

been admitted to the bar for five years 

and have three years of postconviction 

litigation experience, that omission will 

not result in a determination that it has 

failed to satisfy the § 26.22(b)(1)(i) 

benchmark. 

Finally, some commenters objected to 

this revision of the benchmark as 

unduly limiting State discretion 

regarding the formulation of their 

counsel competency standards. 

However, use of this particular standard 

as a benchmark does not convey or 

depend on a judgment that other 

approaches States may choose to adopt 

are necessarily illegitimate or 

inadequate for purposes of chapter 154. 

Rather, other standards may be 

presented for the Attorney General’s 

consideration under § 26.22(b)(2), and 

they will be approved if they otherwise 

reasonably assure a level of proficiency 

appropriate for State postconviction 

litigation in capital cases. 

Section 26.22(b)(1)(ii)—Counsel 

Competency Standards Based on the 

Innocence Protection Act 

Section 26.22(b)(1)(ii) identifies the 

establishment of qualification standards 

for appointment in conformity with the 

procedures of the IPA as another 

potential means of satisfying chapter 

154. 

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The text of the rule published in the 

notice of proposed rulemaking framed 

the benchmark in terms of ‘‘meeting 

qualification standards established in 

conformity with 42 U.S.C. 14163(e)(1) 

[and] (2)(A).’’ These provisions concern 

the nature and composition of capital 

counsel appointment or selection 

entities, 42 U.S.C. 14163(e)(1), and 

provide that the appointing authority or 

an appropriate designated entity must 

‘‘establish qualifications for attorneys 

who may be appointed to represent 

indigents in capital cases,’’ 42 U.S.C. 

14163(e)(2)(A). 

Numerous comments on the proposed 

rule related to how many of the IPA 

provisions should be imported into the 

rule’s benchmark. Commenters noted 

that the benchmark as formulated in the 

proposed rule did not capture the full 

range of IPA provisions bearing on the 

qualifications counsel must meet to be 

eligible for appointment. In particular, 

subparagraphs (e)(2)(B), (D), and (E) in 

42 U.S.C. 14163 require maintenance of 

a roster of qualified attorneys, 

specialized training programs for 

attorneys providing capital case 

representation, monitoring the 

performance of attorneys who are 

appointed and their attendance at 

training programs, and removal from the 

roster of attorneys who fail to deliver 

effective representation, engage in 

unethical conduct, or do not participate 

in required training. These provisions 

are integral elements of the IPA 

qualification standards for 

appointments, because counsel who fail 

to measure up under these requirements 

become ineligible for subsequent 

appointments. 

These comments were persuasive that 

the IPA-based provision in the proposed 

rule did not fully reflect the IPA system 

relating to qualifications for 

appointment because of the omission of 

reference to subparagraphs (e)(2)(B), (D), 

and (E) in the statute. The omission has 

been corrected in § 26.22(b)(1)(ii) in the 

final rule. 

The supplemental notice of proposed 

rulemaking included this change in the 

IPA-based benchmark. See 77 FR at 

7560. Some of the commenters 

responding to the supplemental notice 

questioned the continued omission of 

certain other IPA provisions, 

particularly the IPA requirements 

relating to appointment of two counsel, 

and the IPA requirements concerning 

compensation of counsel. See 42 U.S.C. 

14163(e)(2)(C), (F). Counsel 

compensation is addressed in a different 

part of this rule, which includes 

benchmarks similar to the IPA 

provisions. See § 26.22(c)(1)(ii) and (iv) 

in the final rule and the related 

discussion below. 

Regarding the number of counsel, 

chapter 154 does not require States to 

appoint more than one attorney (as part 

of a defense team) for postconviction 

representation. Rather, the applicable 

statute frames the potential appointment 

of multiple postconviction counsel as a 

discretionary matter. See 28 U.S.C. 

2261(c)(1) (State capital counsel 

mechanism must provide for court order 

‘‘appointing one or more counsels to 

represent the prisoner’’). The 

Department believes there is no sound 

basis to eliminate the discretion chapter 

154 contemplates by its own terms 

through a rule that forecloses 

certification of State mechanisms that 

provide for the appointment of only one 

attorney. 

Furthermore, the IPA itself requires 

appointment of two counsel, with some 

exception, in the context of counsel 

standards that do not differentiate 

between different stages in the litigation 

of capital cases and that are principally 

concerned with the trial stage. See 42 

U.S.C. 14163(c)–(d) (providing that IPA 

funding is to be used for effective 

systems for providing competent legal 

representation at all stages, with general 

requirement that at least 75% be used in 

relation to trial representation and at 

most 25% in relation to appellate and 

postconviction representation). In 

adapting the IPA standards to the 

context of chapter 154, which concerns 

only representation in postconviction 

proceedings, some flexibility on the 

question whether multiple counsel 

should be required is appropriate and 

accords with relevant congressional 

judgments in related contexts. As noted, 

chapter 154 itself frames the 

appointment of multiple postconviction 

counsel as a discretionary matter. 28 

U.S.C. 2261(c)(1). Likewise, in relation 

to Federal capital cases and Federal 

habeas corpus review of State capital 

cases, Congress has required 

appointment of two counsel at trial but 

has made appointment of more than one 

counsel at later stages a discretionary 

matter. Compare 18 U.S.C. 3005 (court 

to ‘‘assign 2 . . . counsel’’ for trial 

representation) with 18 U.S.C. 3599(a) 

(requiring in provisions applicable at 

later stages ‘‘appointment of one or 

more attorneys’’). The rule takes a 

similar approach when adapting the IPA 

standards in the chapter 154 context by 

permitting, but not requiring, State 

mechanisms to provide for appointment 

of two attorneys to represent a capital 

petitioner on collateral review. 

Additionally, § 26.22(b) in the rule 

articulates the statutory requirement 

that a State provide for the appointment 

of competent counsel in State 

postconviction proceedings and provide 

standards of competency for the 

appointment of such counsel. 28 U.S.C. 

2265(a)(1)(A), (C). As discussed above, 

this means that States must have 

qualification standards that counsel 

must meet to be eligible for appointment 

and that the Attorney General finds 

adequate. The IPA provisions included 

in § 26.22(b)(1)(ii) in the final rule fit 

within this framework because they are 

integral to the IPA’s specification of 

qualifications that counsel must meet to 

be eligible for initial or subsequent 

appointments. The same would not be 

true of specifications concerning the 

number of counsel to be appointed. 

As to a separate issue, another 

comment criticized this benchmark on 

the ground that it does not prescribe 

definite qualification standards for 

appointment of counsel, but rather 

endorses any standards adopted in 

conformity with the IPA procedures. 

However, chapter 154 directs the 

Attorney General to determine whether 

the State provides standards of 

competency for appointment of 

competent counsel in State capital 

collateral proceedings, and whether the 

State’s mechanism incorporating such 

standards will reasonably assure the 

appointment of competent counsel. It 

does not require the Attorney General to 

specify directly the required content of 

such standards. The corresponding 

provisions of the IPA reflect a judgment 

by Congress that qualification standards 

adopted in conformity with the IPA 

procedures will be adequate. This 

judgment is appropriately adopted in 

defining one of the means by which 

States may seek to satisfy the 

requirements of chapter 154. 

Section 26.22(b)(2)—Other Counsel 

Competency Standards 

Section 26.22(b)(2) in the rule 

provides that the Attorney General may 

find other competency standards for the 

appointment of counsel adequate if they 

reasonably assure a level of proficiency 

appropriate for State postconviction 

litigation in capital cases. Some 

commenters criticized this provision as 

overly indefinite and urged that the rule 

should provide for assessment of State 

capital counsel competency standards 

only under clearly defined criteria. 

Many of these critical comments are 

premised at least partly on the view that 

the Attorney General has a conflict of 

interest under chapter 154. The 

commenters viewed this alleged conflict 

as exacerbated by § 26.22(b)(2) and 

urged that the rule eliminate or 

drastically limit any opportunity for the 

Attorney General to exercise judgment 

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or discretion in evaluating the adequacy 

of a State capital counsel mechanism. 

The Department rejects the premise that 

the Attorney General has a conflict, for 

reasons discussed above, and therefore 

finds the comments predicated on that 

view unpersuasive. 

Also, as explained earlier, the 

Department believes States should 

retain some significant discretion to 

formulate and apply counsel 

competency standards, and § 26.22(b)(2) 

as drafted appropriately preserves that 

discretion. There are any number of 

ways in which a State might adopt 

measures of experience, knowledge, 

skills, training, education, or 

combinations of those considerations in 

devising a standard that would 

reasonably assure the appointment of 

counsel who are competent to conduct 

postconviction litigation in capital 

proceedings. Revising § 26.22(b)(2) to 

provide only very specific, one-size-fitsall criteria is accordingly impractical 

and would risk foreclosing innovative 

efforts by States to devise robust 

standards, even standards that would 

unquestionably result in the timely 

appointment of competent counsel. 

Furthermore, before Congress 

reassigned the certification function 

from the Federal courts to the Attorney 

General by the 2006 amendments to 

chapter 154, courts did not assess the 

adequacy of State counsel competency 

standards constrained by rigid, preannounced criteria; they were guided 

instead by the terms of chapter 154 itself 

and the facts in a particular case. See, 

e.g., Spears, 283 F.3d at 1012–15; 

Ashmus, 123 F.3d at 1208; Hill, 941 F. 

Supp. at 1142–43. The 2006 

amendments changed the decisionmaker for purposes of making 

judgments about the overall adequacy of 

State systems under chapter 154, but the 

amendments do not suggest that the 

Attorney General’s discretion to 

evaluate the adequacy of State 

competency standards must be 

constrained by a one-size-fits-all 

approach. Had Congress questioned the 

Attorney General’s ability to exercise 

discretion soundly or believed that more 

specific guidance was necessary, it 

could have amended the statutory 

scheme to specify more detailed 

requirements that State mechanisms 

must meet when it transferred the 

certification function to the Attorney 

General—but Congress did not do so. 

This is not to say, as some comments 

contend, that § 26.22(b)(2) affords a 

State unbounded discretion to establish 

any sort of competency standards and 

still obtain certification of its 

mechanism under chapter 154. The 

notice and supplemental notice of 

proposed rulemaking described the two 

approaches now reflected in paragraph 

(b)(1) of the rule as benchmarks, and 

they function precisely in that manner. 

That is, the criteria in paragraph (b)(1) 

do not simply identify two competency 

standards that will entitle a State that 

adopts them to a presumption of 

adequacy; they also serve as a point of 

reference in judging the adequacy of 

other counsel qualification standards 

that States may establish and offer for 

certification by the Attorney General. A 

State mechanism that does not 

incorporate the benchmark standards 

will naturally require closer 

examination by the Attorney General to 

ensure that it satisfies the statutory 

standards, and while it is possible to 

conceive of a variety of alternative 

competency measures that would satisfy 

chapter 154’s requirements, State 

competency standards that appear likely 

to result in significantly lower levels of 

proficiency compared to the benchmark 

levels risk being found inadequate 

under chapter 154. For clarity, the text 

of the proposed rule has been revised to 

reflect this understanding, namely, that 

the paragraph (b)(1) standards function 

as benchmarks and are relevant to the 

Attorney General’s assessment of 

alternative competency standards for 

which certification would be predicated 

on § 26.22(b)(2). 

This explanation also responds to 

another comment, which complains that 

the provision appearing in the final rule 

as § 26.22(b)(2) is overly restrictive, on 

the ground that it limits the possibility 

of approval of State competency 

standards to situations in which they 

are ‘‘functionally identical to or more 

stringent than’’ the particular 

benchmark standards described in 

§ 26.22(b)(1). This comment reflects a 

misunderstanding of the rule. The 

analysis statement in the proposed rule 

noted in relation to the benchmarks that 

States’ adoption of competency 

requirements that are similar or that are 

likely to result in even higher levels of 

proficiency will weigh in favor of a 

finding of adequacy for purposes of 

chapter 154, see 76 FR at 11709, and a 

statement to the same effect appears in 

the section-by-section analysis for this 

final rule. However, it is not similarity 

in form to the presumptively adequate 

standards that section (b)(2) 

contemplates, and the standards need 

not function in an identical matter. 

Rather, § 26.22(b)(2) contemplates a 

close equivalence in terms of the 

expectation that a proffered mechanism 

will reasonably assure an appropriate 

level of proficiency in appointed 

counsel. As the analysis statement 

explained and this preamble repeats, 

Congress intended the States to have 

significant discretion regarding 

competency standards, within 

reasonable bounds, and the particular 

benchmarks identified in the rule do not 

exhaust the means by which States may 

satisfy chapter 154’s requirements. 

Section 26.22(c)—Compensation of 

Counsel 

Section 26.22(c)(1)(i) refers to the 

compensation of counsel pursuant to 18 

U.S.C. 3599 in Federal habeas corpus 

proceedings reviewing State capital 

cases. The Department received no 

comments that were specifically critical 

of this standard, which remains 

unchanged in the final rule. 

The compensation standards for 

appointed capital counsel in State 

collateral proceedings described in 

§ 26.22(c)(1)(ii) and (iv) in the rule 

involve compensation comparable to 

that of retained counsel meeting 

sufficient competency standards or 

attorneys representing the State in such 

collateral proceedings. Some comments 

were critical of these benchmarks as 

setting an inadequate level of 

compensation. However, as explained in 

the accompanying analysis statement for 

the rule, these parts of the rule are 

similar to legislative judgments in the 

IPA endorsing compensation of capital 

defense counsel at market rates or at a 

level commensurate with that of 

prosecutors. 42 U.S.C. 

14163(e)(2)(F)(ii)(I); see also ABA 

Guidelines § 9.1(B)(2), at 49 (same). The 

comments provided no persuasive 

reason to reject this legislative judgment 

in the context of chapter 154, or to 

believe that compensating appointed 

capital defense counsel at higher levels 

than competent retained counsel or 

counsel representing the State in the 

same proceedings will generally be 

necessary to induce a sufficient number 

of competent attorneys to provide 

representation. 

Section 26.22(c)(1)(iii) in the rule 

refers to compensation comparable to 

the compensation of appointed counsel 

in State appellate or trial proceedings in 

capital cases. The accompanying 

explanation in the analysis statement for 

this rule explains that the compensation 

afforded for trial and appellate 

representation is likely to be sufficient 

to secure the availability of an adequate 

pool of competent attorneys to provide 

postconviction representation, because 

that level of compensation is necessarily 

sufficient to ensure an adequate number 

of attorneys are available to provide 

representation in trials and appeals, 

where representation by counsel is 

constitutionally required. 

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Some commenters criticized this 

provision as overly permissive on the 

ground that trial and appellate counsel 

may be underpaid and that such counsel 

are sometimes found to have provided 

constitutionally ineffective assistance. 

However, that is not an occurrence that 

can be infallibly guarded against by any 

level of compensation at any stage of 

criminal proceedings. Moreover, the 

proposed rule has been modified to 

afford the Attorney General latitude to 

consider any unusual circumstances 

presented by a particular State system 

that indicate that the level of 

compensation called for in this 

benchmark is unlikely to function as 

expected. It is conceivable in the 

context of a particular State and its 

distinctive market conditions for legal 

services, for example, that what 

normally should be sufficient 

compensation may not in fact be 

reasonably likely to make competent 

lawyers available for timely provision to 

capital petitioners in State 

postconviction proceedings. Cf. Baker, 

220 F.3d at 285–86 (considering perattorney overhead costs and effective 

compensation rates among other factors 

in finding compensation scheme 

inadequate under chapter 154). 

Nevertheless, the Attorney General 

does not exercise limitless discretion to 

pass judgment on whether State 

compensation authorizations are 

sufficiently generous under chapter 154, 

which provides in relevant part simply 

that the Attorney General is to 

determine ‘‘whether the State has 

established a mechanism for the 

appointment [and] compensation . . . of 

competent counsel.’’ 28 U.S.C. 

2265(a)(1)(A). The formulation of the 

rule on this point reads the statutory 

scheme to allow the Attorney General to 

review the adequacy of State 

compensation provisions in the interest 

of promoting sufficient financial 

incentives to secure the appointment of 

competent counsel in sufficient 

numbers to timely provide 

representation to capital petitioners in 

State collateral proceedings. The 

Attorney General will consider any 

available relevant information, 

including the effective hourly rate for 

appointed attorneys, in evaluating a 

mechanism’s compensation standards. 

But the comments critical of the 

§ 26.22(c)(1)(iii) benchmark, which 

raised concerns with funding for 

appointment of counsel in particular 

cases or in particular States, were not 

sufficiently persuasive that 

compensation that adequately motivates 

counsel to accept appointments for the 

trial and appeal of capital cases (in 

which they are held to provision of 

constitutionally effective assistance) 

will generally be unlikely to provide 

sufficient incentives for competent 

counsel to provide representation in 

State collateral proceedings satisfying 

the standards of chapter 154. 

Section 26.22(c)(2) in the rule allows 

approval of other approaches to 

compensation, but ‘‘only if the State 

mechanism is otherwise reasonably 

designed to ensure the availability for 

appointment of [competent] counsel.’’ 

Some commenters criticized this 

provision as vague and urged that the 

rule be modified so that chapter 154 

certification could be granted only if a 

State’s counsel compensation provisions 

satisfy definite criteria stated in the rule. 

As with the corresponding comments 

on § 26.22(b)(2), these comments in part 

reflected an assumption that the 

Attorney General has a conflict of 

interest in carrying out his legal duties 

under chapter 154, and the response is 

much the same. The underlying 

assumption of a conflict of interest is 

not well-founded, for reasons discussed 

above. Additionally, § 26.22(c)(2) is 

consistent with the Department’s 

recognition that a State should have 

significant latitude in designing a 

capital counsel mechanism that (among 

other things) are tailored to the State’s 

unique characteristics and market 

conditions. As already noted, the 

provision affords States appropriate 

discretion to set alternative levels of 

compensation that will reasonably 

assure the timely appointment of 

competent counsel but that might 

otherwise be foreclosed by an overly 

specific ex ante requirement. At the 

same time, as explained above in 

connection with § 26.22(b)(2), a State’s 

latitude to consider alternative 

compensation standards, and the 

Attorney General’s assessment of any 

such standards, is not unbounded. The 

rule identifies four benchmarks that will 

continue to guide the Attorney General’s 

evaluation of other proposed 

standards—as the text of the proposed 

rule has similarly been revised to 

clarify. 

Section 26.22(d)—Reasonable Litigation 

Expenses 

Section 26.22(d) in the rule reflects 

the requirement to provide for payment 

of reasonable litigation expenses. Some 

commenters criticized this provision as 

not sufficiently specific regarding the 

types of expenses that must be defrayed 

and the means of evaluating what 

expenditures are reasonable. They 

accordingly urged more definite 

specification concerning these matters 

in the rule, such as explicitly requiring 

payment for investigators, mitigation 

specialists, mental health and forensic 

science experts, and support personnel, 

and providing standards for evaluating 

the reasonableness of compensation for 

persons in each category. 

The comments raise an important 

issue for consideration. The Department 

recognizes that investigators, mental 

health and forensic experts, and other 

support personnel often contribute 

critical services in capital 

postconviction cases. The Department 

agrees that payment of such individuals, 

among other expenses that may arise in 

the context of a particular case, are 

litigation expenses that should merit 

reimbursement if reasonable, and the 

text of § 26.22(d) has been modified in 

the final rule to clarify this point. See 

ABA Guidelines, at 128 (‘‘[C]ollateral 

counsel cannot rely on the previously 

compiled record but must conduct a 

thorough, independent investigation in 

accordance with Guideline 10.7 . . . 

[including] discover[ing] mitigation that 

was not presented previously, [and] 

identify[ing] mental-health claims 

which potentially reach beyond 

sentencing issues to fundamental 

questions of competency and mentalstate defenses.’’); Rompilla v. Beard, 545 

U.S. 374, 387 (2005) (‘‘‘[W]e long have 

referred [to ABA Standards] as guides to 

determining what is reasonable.’’’ 

(quoting Wiggins v. Smith, 539 U.S. 510, 

524 (2003) (internal quotation marks 

omitted)). 

However, the language of section 2265 

does not suggest that the Attorney 

General must enumerate the universe of 

litigation expenses that merit 

reimbursement. Rather, the relevant 

statutory directive to the Attorney 

General is to determine whether the 

State has established a mechanism for 

the ‘‘payment of reasonable litigation 

expenses.’’ 28 U.S.C. 2265(a)(1)(A). The 

comments on this issue did not 

persuasively establish that a State 

should be denied chapter 154 

certification if its mechanism requires 

the payment of reasonable litigation 

expenses in terms similar to chapter 154 

itself, or at some other level of 

generality less specific than that urged 

by the commenters. See Spears, 283 

F.3d at 1016 (‘‘[Chapter 154] requires 

only that the state mechanism provide 

for the payment of reasonable litigation 

expenses. The federal statute thus 

assumes that a state can assess 

reasonableness as part of its process.’’); 

see also Gould & Greenman, supra, at 

31–32, 78, 122 (2010) (provision for 

Federal court proceedings in capital 

cases, which refers generally to fees and 

expenses for investigative, expert, and 

other reasonably necessary services, 

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states that payment for these purposes 

shall not exceed $7,500 unless approved 

for a higher amount by the circuit chief 

judge or delegee—but the median 

reimbursable cost that Federal courts 

approved in capital cases between 1998 

and 2004 was $83,000). 

Importantly, though, as with other 

requirements under chapter 154, 

satisfaction of the requirement regarding 

payment of reasonable litigation 

expenses requires that States have 

standards in force that so provide. The 

Attorney General will consider all 

relevant aspects of State standards in 

ascertaining whether the statutory 

requirements have been satisfied. Thus, 

as § 26.22(d) states, a general provision 

requiring payment of reasonable 

litigation expenses would not be 

sufficient if negated by rigid payment 

caps with no authorized means for 

payment of necessary expenses above 

such limits, and the Attorney General 

would similarly consider whether such 

a provision is negated by State policy 

that precludes payment for certain 

categories of expenses that may be 

reasonably necessary. Moreover, as with 

other requirements, the Attorney 

General is not dependent on the State’s 

representations, and any interested 

person or entity believing that State 

standards overall do not provide for 

payment of reasonable litigation 

expenses is free to bring relevant 

information to the Attorney General’s 

attention through the comment 

procedure set out in § 26.23 in the rule. 

Comments responding to the 

supplemental notice of proposed 

rulemaking suggested that satisfaction of 

§ 26.22(d) should only be considered 

presumptively adequate for purposes of 

chapter 154, paralleling the 

‘‘presumptively’’ qualifier applicable to 

the benchmark provisions relating to 

counsel competency and compensation, 

which appear in § 26.22(b)(1) and (c)(1) 

in the final rule. The ‘‘presumptively’’ 

qualifier is neither necessary nor 

appropriate here because § 26.22(d) 

incorporates no benchmark provisions. 

It articulates the requirement relating to 

payment of litigation expenses under 

chapter 154, and States that have 

established mechanisms that meet this 

requirement have done what chapter 

154 requires in this connection. Its 

proper counterpart is not the benchmark 

provisions in § 26.22(b)(1) and (c)(1), 

but the general articulations of the 

chapter’s requirements relating to 

counsel competency and compensation 

in § 26.22(b)(2) and (c)(2), which 

similarly do not need or have a 

‘‘presumptively’’ qualifier. 

Section 26.23(a)–(c)—Certification 

Procedure 

These provisions in the rule specify 

the procedure for the Attorney General 

to receive requests for chapter 154 

certification, obtain public comment on 

the requests through Internet posting 

and Federal Register publication, and 

make and announce the certification 

decision. 

Some commenters objected that the 

public notice and comment procedure 

of the rule is inadequate and that the 

Attorney General must engage in 

additional fact-finding processes. These 

objections are premised on an incorrect 

understanding of the nature and scope 

of the Attorney General’s certification 

determination, as explained earlier in 

this preamble. The Attorney General’s 

decision to certify an established State 

mechanism under chapter 154 need not 

be supported by a data-intensive 

examination of the State’s record of 

compliance with the established 

mechanism in all or some significant 

subset of postconviction cases; for 

instance, certification should not be 

foreclosed for a State that cannot submit 

the information the commenters identify 

because it has established new 

standards that satisfy the statutory 

requirements but for which there is no 

pre-existing record of compliance. The 

comments provided no persuasive 

reason to believe that the rule’s 

procedure, under which the Attorney 

General will publish a State’s request for 

certification and invite interested 

parties and the State seeking 

certification to be heard via written 

submissions during one or more public 

comment periods, will be inadequate to 

provide the information needed for the 

determinations that the Attorney 

General actually must make under 

chapter 154. Moreover, the Attorney 

General’s certifications under chapter 

154 are orders rather than rules for 

purposes of the Administrative 

Procedure Act (APA). They are 

accordingly not subject to the APA’s 

rulemaking provisions, see 5 U.S.C. 553, 

much less to the APA’s requirements for 

rulemaking or adjudication required to 

be made or determined on the record 

after opportunity for an agency hearing, 

see 5 U.S.C. 553(c), 554, 556, 557. 

The Department does not believe, as 

some commenters urged, that it is 

necessary to specify detailed 

information concerning State capital 

collateral review systems that States 

must include in their requests for 

chapter 154 certification. For the 

reasons already given, these comments 

were similarly based on an incorrect 

understanding of the nature and scope 

of the Attorney General’s certification 

determination. Chapter 154 itself and 

this rule explain what States must do to 

qualify for chapter 154 certification. 

Under the procedures of § 26.23, States 

will be free to present any and all 

information they consider relevant or 

useful to explain how the mechanism 

for which they seek certification 

satisfies these requirements. Likewise, 

through the public comment procedure 

of the rule, any other interested person 

or entity will be free to submit any 

information it may wish in support of, 

or in opposition to, the State’s request— 

including information that the 

mechanism submitted for certification 

has not been established because its 

standards are actually negated or 

overridden by contrary State policy. 

Further, the proposed rule has been 

revised to make clear that the Attorney 

General may permit more than one 

period for comment to allow the 

requesting State or any interested 

parties further opportunity for 

submission of views or information. The 

comments provided no persuasive 

reason for an across-the-board 

imposition of more definite 

informational requirements beyond that. 

Comments also proposed that the rule 

require the Attorney General to give 

personal notice to certain entities 

concerning a State’s submission of a 

request for chapter 154 certification, 

such as capital defense entities in the 

requesting State. In any particular State, 

there may be a large number of 

organizations and individuals who are 

involved in capital defense work or who 

would be interested in a State’s request 

for chapter 154 certification for other 

reasons. It is not feasible for the 

Attorney General to attempt to identify 

and personally notify all of them. Nor 

should the Attorney General be in the 

position of having to pick and choose, 

identifying certain persons or 

organizations as sufficiently interested 

or important to receive personal notice, 

when others will not receive such 

notice. Such personal notice 

requirements, in any event, are 

unnecessary, because the State’s request 

will be made publicly available on the 

Internet and in the Federal Register as 

provided in § 26.23(b). 

Section 26.23(c) states that if 

certification is granted, the certification 

will be published in the Federal 

Register. Some commenters urged that 

denials of certification also be published 

in the Federal Register. However, the 

granting of chapter 154 certification by 

the Attorney General changes the 

Federal habeas corpus review 

procedures applicable in relation to 

capital cases in the State, so there is a 

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clear interest in making it indisputable 

and publicly known that certification 

has been granted, for which Federal 

Register publication is a convenient and 

sufficient means. The reasons for 

publicizing a denial of certification 

through official publication are less 

compelling because its legal effect is just 

to perpetuate the status quo. Publication 

of a denial of certification might 

alternatively serve the purpose of 

providing the predicate for an appeal of 

the Attorney General’s decision to the 

D.C. Circuit Court of Appeals. However, 

review by the D.C. Circuit would be 

pursuant to chapter 158 of title 28, see 

28 U.S.C. 2265(c), which provides that 

‘‘[o]n the entry of a final order 

reviewable under this chapter, the 

agency shall promptly give notice 

thereof by service or publication in 

accordance with its rules.’’ 28 U.S.C. 

2344. So the Attorney General has the 

option of giving notice by service to the 

State official who requested certification 

regarding the denial of the certification, 

and is not legally required to publish 

the denial. Considering the foregoing, 

the comments do not persuasively 

establish that the rule should be 

changed to require uniformly that the 

Attorney General publish denials of 

certification in the Federal Register. 

Section 26.23(d)—Post-Certification 

Occurrences 

Section 26.23(d) in the rule addresses 

the effect of changes or alleged changes 

in a State capital counsel mechanism 

following certification by the Attorney 

General. 

One commenter urged that more of 

the accompanying explanation 

regarding this provision in the analysis 

statement for the proposed rule be 

contained in the rule itself. The relevant 

portion of the analysis statement, 76 FR 

at 11710–11, in part noted that if a State 

abolishes its capital counsel mechanism 

following certification by the Attorney 

General, then 28 U.S.C. 2261(b)(2)’s 

requirement of appointment of counsel 

pursuant to the certified mechanism as 

a condition of chapter 154’s 

applicability cannot thereafter be 

satisfied, reflecting the obvious point 

that counsel cannot be appointed 

pursuant to something that no longer 

exists. The analysis statement further 

noted that capital habeas petitioners 

may present claims to Federal habeas 

courts that subsequent changes or 

alleged changes in the certified 

mechanism effectively converted it into 

a new and uncertified mechanism, and 

hence section 2261(b)(2)’s requirement 

of appointment of counsel pursuant to 

the certified mechanism was not 

satisfied in their cases. This observation 

reflects no judgment by the Attorney 

General as to whether certain changes in 

a certified mechanism would affect the 

applicability of chapter 154, and, if so, 

under what circumstances or to what 

extent. That is a matter that Federal 

habeas courts may consider if capital 

petitioners raise claims of this nature 

under section 2262(b)(2). The rule says 

no more on this question because 

resolving it is not any part of the 

Attorney General’s certification 

functions under chapter 154. 

The analysis went on to note that in 

such circumstances, or in other 

circumstances in which there has been 

some change or alleged change in the 

State mechanism, the State could 

request a new certification by the 

Attorney General of its present capital 

counsel mechanism. That could avoid 

litigation in Federal habeas courts under 

28 U.S.C. 2261(b)(2) over the present 

status of the State mechanism and 

ensure that determinations regarding 

satisfaction of chapter 154’s 

requirements are made by the Attorney 

General, subject to review by the D.C. 

Circuit Court of Appeals, as 

contemplated by 28 U.S.C. 2261(b)(1) 

and 2265(c)(2). The rule does not need 

to be changed to make this point 

because § 26.23(d) in the rule already 

says that ‘‘[a] State may request a new 

certification by the Attorney General to 

ensure the continued applicability of 

chapter 154 to cases in which State 

postconviction proceedings occur after a 

change or alleged change in the State’s 

certified capital counsel mechanism.’’ 

Some comments urged that the rule 

should be changed to provide a means 

for decertification of State capital 

counsel mechanisms that the Attorney 

General has previously approved. One 

of the comments pointed in this 

connection to 5 U.S.C. 553(e), which in 

part requires agencies to give interested 

persons the right to petition for the 

repeal of a rule. However, that provision 

is inapplicable to chapter 154 

certifications, which are orders rather 

than rules, as noted above. 

Decertification could conceivably be 

effected in one of two ways: (i) through 

some procedure for examination or 

oversight of State capital counsel 

mechanisms following their certification 

to ascertain whether they continue to 

measure up under chapter 154’s 

standards, or (ii) through modification 

of the rule to provide that a certification 

automatically lapses based on 

subsequent changes in the capital 

counsel mechanism or other changed 

circumstances. 

The argument for incorporating some 

provision for continual oversight and 

potential decertification of State capital 

counsel mechanisms is not persuasive 

for a number of reasons. First, the 

proposal conflates the functions 

assigned to the Attorney General and 

those reserved to Federal habeas courts 

under the current formulation of chapter 

154, which limits the Attorney General’s 

function to making general certification 

determinations upon request of an 

appropriate State official, see 28 U.S.C. 

2261(b)(1), 2265(a)(1), and reserves casespecific inquiries affecting chapter 154’s 

applicability to Federal habeas courts 

under 28 U.S.C. 2261(b)(2). Second, the 

chapter includes provisions that 

establish when a certification takes 

effect and direct the Attorney General to 

promulgate regulations to implement a 

certification procedure, see 28 U.S.C. 

2265(a)(2), 2265(b), but no direction to 

the Attorney General to implement a 

decertification procedure. These 

considerations lead to the conclusion 

that day-to-day oversight and potential 

decertification of State capital counsel 

mechanisms are not among the Attorney 

General’s authorized functions under 

chapter 154. 

Regarding the idea that a certification 

would automatically lapse based on 

subsequent events, such an approach 

would pose difficulties in operation, 

most prominently that certification 

should not cease to apply merely 

because the change might affect 

satisfaction of the chapter 154 

requirements, and that it is unclear who 

would determine whether a change in 

the capital counsel system might affect 

satisfaction of the chapter 154 

requirements. 

This rule accordingly responds to 

these difficulties by not including any 

provision for decertification, but 

providing in § 26.23(d) that a State may 

seek a new certification from the 

Attorney General to resolve 

uncertainties concerning chapter 154’s 

continued applicability in light of 

subsequent changes or alleged changes 

in the State’s certified capital counsel 

mechanism. This approach (i) avoids 

any question of legal consistency with 

chapter 154’s definition of the Attorney 

General’s authority and functions, and 

(ii) avoids the difficulties inherent in 

attempting to define ex ante and in the 

absence of any factual context the 

conditions and procedures for assessing 

whether and what changes to a State 

system should prompt a decertification 

review, but (iii) affords a means for 

resolution by the responsible authority 

under chapter 154 of questions that may 

arise in practice regarding the continued 

effectiveness of chapter 154 

certifications. 

Just as importantly, § 26.23(e), 

discussed below, provides that 

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58176 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

certifications are effective for a period of 

five years, thereby ensuring that a State 

capital counsel mechanism’s current 

satisfaction of the chapter 154 

requirements will be revisited at 

reasonable intervals. This addresses 

concerns about the possibility of 

subsequent changes in a State’s system 

that could put it out of compliance with 

chapter 154, further reducing the force 

of any argument that a decertification 

procedure is needed. 

Section 26.23(e)—Renewal of 

Certifications 

Section 26.23(e) provides that 

certifications remain effective for a 

period of five years. The addition of this 

provision, which was not in the 

proposed rule but was described in the 

supplemental notice of proposed 

rulemaking, see 77 FR at 7562, is 

responsive to many comments that 

pointed out that changed circumstances 

may affect whether a once-certified 

mechanism continues to be adequate for 

purposes of chapter 154. For example, 

inflation or changed economic 

circumstances may mean that 

provisions authorizing compensation of 

counsel at a specified hourly rate, which 

were sufficient at the time of an initial 

certification decision, are no longer 

adequate after the passage of years. Or 

changes may occur in the standards 

constituting a State’s postconviction 

capital counsel mechanism that affect 

their consistency with chapter 154. 

Some commenters on the 

supplemental notice approved of this 

change but urged that the rule include 

more detail concerning the operation of 

the recertification process and the 

standards that would be applied in 

making recertification decisions. This is 

unnecessary because the process and 

standards for subsequent certification 

decisions are the same as those for 

initial certification decisions under the 

rule. The standards of § 26.22 will be 

applied in deciding whether a State’s 

capital counsel mechanism for which 

recertification is requested satisfies the 

chapter 154 requirements, and the 

procedure set forth in § 26.23 will apply 

in entertaining, obtaining public input 

concerning, and deciding recertification 

requests. 

Two commenters objected to limiting 

the duration of certifications on the 

grounds that chapter 154 does not 

provide for the termination of 

certifications and that the sponsor of the 

2006 amendments to chapter 154 

explained that they were intended to 

create a system of ‘‘one-time 

certification.’’ See 152 Cong. Rec. S1625 

(daily ed. Mar. 2, 2006) (statement of 

Sen. Kyl). Regarding the statutory 

question, the statutory framework is 

unquestionably premised on the 

continuing sufficiency of a mechanism 

once certified by the Attorney General. 

The quid pro quo that is the core and 

the animating purpose of chapter 154, 

procedural ‘‘benefits’’ for States if and 

only if they meet the statutory criteria, 

would cease to make sense if a 

certification were indefinitely and 

irrevocably effective even if—by virtue 

of changed circumstances, see infra 

(analysis statement)—the standards first 

put in place by a State no longer 

satisfied the statutory requirements. 

Providing for periodic review of 

certifications is fully consistent with the 

statutory text and avoids such an absurd 

result. If a statute requires an 

assessment of mutable conditions 

against legal standards, a reasonable 

time limit may be imposed on the 

effectiveness of a certification to ensure 

its continuing validity, even if the 

authorizing statute does not explicitly 

provide for a time limit. See Durable 

Mfg. Co. v. U.S. Dep’t of Labor, 578 F.3d 

497, 501–02 (7th Cir. 2009) (upholding 

time limitation of validity of labor 

certificates in light of possible 

subsequent changes in economic 

circumstances affecting consistency 

with statutory requirements and 

objectives). 

Regarding the statement by the 

sponsor of the amendment, it reflects a 

rejection of the idea of a continuing 

‘‘compliance review’’ process or 

‘‘decertification’’ procedure under 

chapter 154 in light of (i) ‘‘the 

substantial litigation burdens’’ that 

would likely result for States that have 

been certified, including ‘‘the cost of 

creating opportunities to force the State 

to continually litigate its chapter 154 

eligibility,’’ (ii) the concern that ‘‘if such 

a means of post-opt-in review were 

created, it inevitably would be overused 

and abused,’’ and (iii) the judgment that 

States ‘‘are entitled to a presumption 

that once they have been certified as 

chapter-154 compliant, they will 

substantially maintain their counsel 

mechanisms.’’ 152 Cong. Rec. S1625 

(daily ed. Mar. 2, 2006) (statement of 

Sen. Kyl). The statement further viewed 

a decertification procedure as enabling 

adverse parties to embroil States in 

challenges to the continued validity of 

their capital counsel mechanisms under 

chapter 154 based on case-specific 

deficits in their operation, such as delay 

in the appointment of counsel in 

particular cases for reasons beyond the 

State’s control. See id. 

Considered as a whole, the sponsor’s 

statement reflects concerns that would 

be implicated by the creation of a 

continuing oversight or decertification 

procedure for chapter 154. The 

Department, as discussed above, has not 

attempted to create such a procedure in 

the present rule. 

The provision adopted in § 26.22(e) in 

the final rule does not implicate these 

concerns. It authorizes no person or 

entity to initiate challenges to the 

continuing validity of a certification, 

much less to involve a State in the 

uncertainty of perpetual litigation about 

the validity of a certification. Moreover, 

§ 26.22(e) provides that certifications 

remain effective for an uninterrupted 

period of five years after the completion 

of the certification process by the 

Attorney General and any related 

judicial review. If recertification is 

requested at or before the end of that 

period, the rule provides that the prior 

certification will remain in effect until 

the completion of the recertification 

process by the Attorney General and any 

related judicial review. 

Section 26.22(e) also does not 

implicate the concern about challenges 

based on case-specific non-compliance 

with State capital counsel mechanisms. 

Recertification decisions by the 

Attorney General will involve the same 

standards and procedures as initial 

certification decisions. 

Finally, the inclusion of § 26.22(e) in 

the rule does not reflect an assumption 

that States are likely to abolish or 

materially weaken their chapter 154- 

compliant capital counsel mechanisms 

once they have been established. If no 

changes have occurred that take a State 

capital counsel mechanism out of 

compliance with chapter 154, then it 

will be recertified, and the 

recertification process will provide a 

definitive means of establishing 

continued satisfaction of the chapter’s 

requirements. 

Section-by-Section Analysis 

Section 26.20 

Section 26.20 explains the rule’s 

purpose of implementing the 

certification procedure for chapter 154. 

It is modified from the corresponding 

provision in the 2008 regulations to 

describe more fully the conditions for 

the applicability of chapter 154 under 

28 U.S.C. 2261(b). 

Section 26.21 

Section 26.21 defines the terms 

‘‘appropriate state official’’ and ‘‘state 

postconviction proceedings’’ in the 

same manner as the 2008 regulations, 

and adds a definition of ‘‘appointment’’ 

and ‘‘indigent prisoners.’’ 

Chapter 154 involves a quid pro quo 

arrangement under which States 

provide for the appointment of counsel 

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for indigent petitioners in State 

postconviction proceedings in capital 

cases, and in return Federal habeas 

review is carried out with generally 

more limited time frames and scope 

following the State postconviction 

proceedings in which counsel has been 

made available. See 28 U.S.C. 2261– 

2266. In this context, not every 

provision for making counsel available 

in State postconviction proceedings, 

however belatedly, can logically be 

regarded as providing for the 

appointment of counsel in the sense 

relevant under the chapter. In 

particular, that would not be the case if 

the State capital counsel mechanism 

provided for the availability of counsel 

to represent indigent capital petitioners 

only after the deadline for pursuing 

State postconviction proceedings had 

passed; or only after the expiration of 

the time limit in 28 U.S.C. 2263 for 

Federal habeas filing; or only after such 

delay that the time available to prepare 

for and pursue State or Federal 

postconviction review had been 

seriously eroded. Section 26.21 

accordingly defines ‘‘appointment’’ to 

mean ‘‘provision of counsel in a manner 

that is reasonably timely in light of the 

time limitations for seeking State and 

Federal postconviction review and the 

time required for developing and 

presenting claims in the postconviction 

proceedings.’’ 

Under 28 U.S.C. 2265(a), a 

certification request must be made by 

‘‘an appropriate State official.’’ Prior to 

the 2006 amendments to chapter 154, 

Federal courts entertaining habeas 

corpus applications by State prisoners 

under sentence of death would decide 

which set of habeas corpus procedures 

applied—chapter 153 or chapter 154 of 

title 28—and State attorneys general 

responsible for such litigation could 

request determinations that their States 

had satisfied the requirements for the 

applicability of chapter 154. The 2006 

amendments to chapter 154 were not 

intended to disable the State attorneys 

general from their pre-existing role in 

this area, and State attorneys general 

continue in most instances to be the 

officials with the capacity and 

motivation to seek chapter 154 

certification for their States. See 73 FR 

at 75329–30. Section 26.21 of the rule 

accordingly provides that the 

appropriate official to seek chapter 154 

certification is normally the State 

attorney general. In those few States, 

however, where the State attorney 

general does not have responsibilities 

relating to Federal habeas corpus 

litigation, the chief executive of the 

State will be considered the appropriate 

State official to make a submission on 

behalf of the State. 

Section 26.21 defines ‘‘State 

postconviction proceedings’’ as 

‘‘collateral proceedings in State court, 

regardless of whether the State conducts 

such proceedings after or concurrently 

with direct State review.’’ Collateral 

review normally takes place following 

the completion of direct review of the 

judgment, but some States have special 

procedures for capital cases in which 

collateral proceedings and direct review 

may take place concurrently. Provisions 

that separately addressed the 

application of chapter 154 to these 

systems were replaced by the 2006 

amendments with provisions that 

permit chapter 154 certification for all 

States under uniform standards, 

regardless of their timing of collateral 

review vis-a`-vis direct review. Compare 

28 U.S.C. 2261(b), 2265 (2006) (as 

amended by the USA PATRIOT 

Improvement and Reauthorization Act 

of 2005), with 28 U.S.C. 2261(b), 2265 

(2000) (as enacted by AEDPA). See 

generally 152 Cong. Rec. S1620 (daily 

ed. Mar. 2, 2006) (statement of Sen. Kyl) 

(explaining that the current provisions 

simplify the chapter 154 qualification 

standards, ‘‘which obviates the need for 

separate standards for those States that 

make direct and collateral review into 

separate vehicles and those States with 

unitary procedures’’). 

The definition of ‘‘State 

postconviction proceedings’’ in the rule 

reflects the underlying objective of 

chapter 154 to provide expedited 

Federal habeas corpus review in capital 

cases arising in States that have gone 

beyond the constitutional requirement 

of providing counsel for indigents at 

trial and on appeal by extending the 

provision of counsel to indigent capital 

petitioners in State collateral 

proceedings. See 73 FR at 75332–33, 

75337 (reviewing relevant legislative 

and regulatory history). The provisions 

of chapter 154, as well as its legislative 

history, reflect the understanding of 

‘‘postconviction proceedings’’ as 

specifically referring to collateral 

proceedings rather than to all 

proceedings that occur after conviction 

(e.g., sentencing proceedings, direct 

review). See 28 U.S.C. 2261(e) 

(providing that ineffectiveness or 

incompetence of counsel during 

postconviction proceedings in a capital 

case cannot be a ground for relief in a 

Federal habeas corpus proceeding); 28 

U.S.C. 2263(a), (b)(2) (180-day time limit 

for Federal habeas filing under chapter 

154 starts to run ‘‘after final State court 

affirmance of the conviction and 

sentence on direct review or the 

expiration of the time for seeking such 

review’’ subject to tolling ‘‘from the date 

on which the first petition for 

postconviction review or other collateral 

relief is filed until the final State court 

disposition of such petition’’); 152 Cong. 

Rec. S1620, 1624–25 (daily ed. Mar. 2, 

2006) (statement of Sen. Kyl) 

(explaining that chapter 154 provides 

incentives for States to provide counsel 

in State postconviction proceedings, 

referring to collateral proceedings); 151 

Cong. Rec. E2639–40 (daily ed. Dec. 22, 

2005) (extension of remarks of Rep. 

Flake) (displaying the same 

understanding); see also, e.g., Murray v. 

Giarratano, 492 U.S. 1 (1989) (using the 

terms postconviction and collateral 

proceedings interchangeably). 

Section 26.22 

Section 26.22 sets out the 

requirements for certification that a 

State must meet to qualify for the 

application of chapter 154. These are 

the requirements in 28 U.S.C. 2261(c)– 

(d) and 2265(a)(1). 

Paragraph (a) of § 26.22—Appointment 

of Counsel 

Paragraph (a) of § 26.22 sets out the 

requirements of chapter 154 concerning 

appointment of counsel that appear in 

28 U.S.C. 2261(c)–(d). 

Paragraph (b) of § 26.22—Competent 

Counsel 

Paragraph (b) of § 26.22 explains how 

States may satisfy the requirement to 

provide for appointment of ‘‘competent 

counsel’’ and to provide ‘‘standards of 

competency’’ for such appointments. 28 

U.S.C. 2265(a)(1)(A), (C). 

The corresponding portion of the 

2008 regulations construed the reference 

to appointment of ‘‘competent counsel’’ 

in section 2265(a)(1)(A) as a crossreference to counsel meeting the 

competency standards provided by the 

State pursuant to section 2265(a)(1)(C). 

It accordingly treated the definition of 

such standards as a matter of State 

discretion, not subject to further review 

by the Attorney General. See 73 FR at 

75331. However, these provisions may 

also reasonably be construed as 

permitting the Attorney General to 

require a threshold of minimum counsel 

competency, while recognizing 

substantial State discretion in setting 

counsel competency standards. See 

generally OLC Opinion. The latter 

understanding is supported by cases 

interpreting chapter 154, see, e.g., 

Spears, 283 F.3d at 1013 (recognizing 

that ‘‘Congress . . . intended the states 

to have substantial discretion to 

determine the substance of the 

competency standards’’ under chapter 

154 while still reviewing the adequacy 

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of such standards), and by the original 

Powell Committee proposal from which 

many features of chapter 154 ultimately 

derive, see 135 Cong. Rec. 24696 (1989). 

This understanding is adopted in 

§ 26.22(b) of the final rule. 

The specific standards set forth in 

paragraph (b) are based on judgments by 

Congress in Federal laws concerning 

adequate capital counsel competency 

standards and on judicial interpretation 

of the counsel competency requirements 

of chapter 154. Section 26.22(b)(1) sets 

out two approaches that will 

presumptively be considered adequate 

to satisfy chapter 154—an option 

involving an experience requirement 

derived from the standard for 

appointment of counsel in Federal court 

proceedings in capital cases (paragraph 

(b)(1)(i)), and an option involving 

qualification standards set in a manner 

consistent with relevant portions of the 

IPA (paragraph (b)(1)(ii)). Section 

26.22(b)(2) provides that States can 

satisfy chapter 154’s requirements by 

reasonably assuring an appropriate level 

of proficiency in other ways, such as by 

requiring some combination of 

experience and training. 

As indicated in the introductory 

language in subsection (b)(1) of § 26.22, 

State capital counsel mechanisms will 

be regarded as presumptively adequate 

in relation to counsel competency if 

they meet or exceed the benchmark 

standards identified in the subsection. 

States will not be penalized for going 

beyond the minimum required by the 

rule. Thus, for example, in relation to 

paragraph (b)(1)(i), State competency 

standards will be considered 

presumptively sufficient if they require 

five years of postconviction experience, 

rather than three; uniform satisfaction of 

the five-year/three-year experience 

requirement rather than allowing some 

exception as in 18 U.S.C. 3599(d); or 

training requirements for appointment 

in addition to the specified experience 

requirement. 

The rule does not require that all 

counsel in a State qualify under the 

same standard. Alternative standards 

may be used so long as the State 

mechanism requires that all counsel 

satisfy some standard qualifying under 

paragraph (b). Cf. 18 U.S.C. 3599(d) 

(allowing exceptions to categorical 

experience requirement); Spears, 283 

F.3d at 1013 (finding that alternative 

standards are allowed under chapter 

154). Hence, for example, a State system 

may pass muster by requiring that 

appointed counsel either satisfy an 

experience standard sufficient under 

paragraph (b)(1)(i) or satisfy an 

alternative standard sufficient under 

paragraph (b)(2) involving more limited 

experience but an additional training 

requirement. 

Option 1: § 26.22(b)(1)(i)—The 

Competency Standards for Federal 

Court Proceedings 

As provided in paragraph (b)(1)(i) of 

§ 26.22, a State may satisfy chapter 154’s 

requirement relating to counsel 

competency by requiring appointment 

of counsel ‘‘who have been admitted to 

the bar for at least five years and have 

at least three years of postconviction 

litigation experience.’’ This is based on 

the standard for appointed counsel in 

capital case proceedings in Federal 

court. See 18 U.S.C. 3599(a)–(e). 

Because Congress has determined that a 

counsel competency standard of this 

nature is adequate for capital cases in 

Federal court proceedings, including 

postconviction proceedings, see 18 

U.S.C. 3599(a)(2), it will also 

presumptively be considered adequate 

for chapter 154 purposes when such 

cases are at the stage of State 

postconviction review. 

The counsel competency standards 

for Federal court proceedings in capital 

cases under 18 U.S.C. 3599 do not 

require adherence to a five-year/threeyear experience requirement in all 

cases, but provide that the court, ‘‘for 

good cause, may appoint another 

attorney whose background, knowledge, 

or experience would otherwise enable 

him or her to properly represent the 

defendant,’’ with due consideration of 

the seriousness of the penalty (i.e., 

capital punishment) and the nature of 

the litigation. 18 U.S.C. 3599(d). For 

example, a court might consider it 

appropriate to appoint an attorney who 

is a law professor with expertise in 

capital punishment law and training in 

capital postconviction litigation to 

represent a prisoner under sentence of 

death, even if the attorney has less than 

three years of relevant litigation 

experience. The rule in paragraph 

(b)(1)(i) accordingly does not require the 

imposition of a five-year/three-year 

minimum experience requirement in all 

cases, but allows States that generally 

impose such a requirement to permit the 

appointment of other counsel who 

would qualify for appointment under 

the exception allowed in 18 U.S.C. 

3599, i.e., appointment by a court, for 

good cause, of attorneys whose 

background, knowledge, or experience 

would otherwise enable them to 

properly represent prisoners under 

sentence of death considering the 

seriousness of the penalty and the 

nature of the litigation. This recognizes, 

as in section 3599, that courts may 

properly be allowed, for good cause, to 

depart from the specified experience 

requirement, which the Department 

expects would occur only in exceptional 

cases. 

Option 2: § 26.22(b)(1)(ii)—The 

Innocence Protection Act Standards 

Paragraph (b)(1)(ii) in § 26.22 sets 

forth a second approach that 

presumptively satisfies the counsel 

competency requirements of chapter 

154, specifically, by setting qualification 

standards for appointment of 

postconviction capital counsel in a 

manner consistent with the IPA. The 

IPA directs the Attorney General to 

provide grants to States to create or 

improve ‘‘effective system[s] for 

providing competent legal 

representation’’ in capital cases, 42 

U.S.C. 14163(c)(1), and provides a 

definition of ‘‘effective system’’ in 42 

U.S.C. 14163(e) that is largely based on 

elements of the ABA Guidelines. 

Compare 42 U.S.C. 14163(e), with ABA 

Guidelines § 3.1, at 22–23. The IPA 

specifies that such effective systems are 

to include appointment of capital 

counsel (i) by a public defender 

program, (ii) by an entity composed of 

individuals with demonstrated 

knowledge and expertise in capital 

cases (other than current prosecutors) 

that is established by statute or by the 

highest State court with criminal case 

jurisdiction, or (iii) by the court 

appointing qualified attorneys from a 

roster maintained by a State or regional 

selection committee or similar entity 

pursuant to a pre-existing statutory 

procedure. 42 U.S.C. 14163(e)(1). 

Under the IPA requirements, the 

appointing authority or an appropriate 

designated entity must ‘‘establish 

qualifications for attorneys who may be 

appointed to represent indigents in 

capital cases,’’ ‘‘maintain a roster of 

qualified attorneys,’’ ‘‘conduct, sponsor, 

or approve specialized training 

programs,’’ and monitor and disqualify 

from subsequent appointment attorneys 

whose performance is ineffective or 

unethical or who fail to participate in 

required training. 42 U.S.C. 

14163(e)(2)(A), (B), (D), (E). The IPA 

does not prescribe the content of the 

required counsel qualification 

standards, but assumes that the 

specifications regarding the nature of 

the appointment or selection 

authority—and the associated 

requirements for post-appointment 

monitoring and potential 

disqualification—can be relied on to 

provide appropriate competency 

standards. 

Paragraph (b)(1)(ii) in § 26.22 follows 

this legislative judgment in relation to a 

State’s satisfaction of the counsel 

competency requirements of chapter 

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154. Thus, a State’s capital counsel 

mechanism will presumptively be 

deemed adequate for purposes of 

chapter 154’s counsel competency 

requirements if it provides for the 

appointment and qualification (or 

disqualification) of counsel in State 

postconviction proceedings in capital 

cases in a manner consistent with 42 

U.S.C. 14163(e)(1) and 14163(e)(2)(A), 

(B), (D), (E). 

Option 3: § 26.22(b)(2)—Other 

Standards Reasonably Assuring 

Proficiency 

In enacting chapter 154, ‘‘Congress 

did not envision any specific 

competency standards but, rather, 

intended the states to have substantial 

discretion to determine the substance of 

the competency standards.’’ Spears, 283 

F.3d at 1013. The options described in 

paragraphs (b)(1)(i) and (ii) in § 26.22 

accordingly do not exhaust the means 

by which States may satisfy chapter 

154’s requirements concerning counsel 

competency. Indeed, Congress in 

formulating chapter 154 rejected a 

recommendation that States uniformly 

be required to satisfy standards similar 

to those for Federal court proceedings in 

capital cases that currently appear in 18 

U.S.C. 3599, see 73 FR at 75331, and in 

amending chapter 154 in 2006 Congress 

did not modify chapter 154 to require 

adherence by States to the IPA 

standards that had been enacted in 2004 

but rather continued to use the more 

general language of chapter 154 relating 

to counsel competency. 

Consequently, as provided in 

paragraph (b)(2) in § 26.22, the Attorney 

General will consider whether a State’s 

counsel competency standards 

reasonably assure appointment of 

counsel with a level of proficiency 

appropriate for State postconviction 

litigation in capital cases, even if they 

do not meet the particular criteria set 

forth in paragraph (b)(1)(i) or (b)(1)(ii). 

As in the courts’ consideration of the 

adequacy of State competency standards 

prior to the 2006 amendments to 

chapter 154, no definite formula can be 

prescribed for this review, and the 

Attorney General will assess such State 

mechanisms individually. Measures that 

will be deemed relevant include 

standards of experience, knowledge, 

skills, training, education, or 

combinations of these considerations 

that a State requires attorneys to meet in 

order to be eligible for appointment in 

State capital postconviction 

proceedings. Cf. 18 U.S.C. 3599(d) 

(allowing appointment of counsel 

whose background, knowledge, or 

experience would otherwise enable 

such counsel to properly represent the 

petitioner); Spears, 283 F.3d at 1012–13 

(finding that competency standards 

involving combination of experience, 

proficiency, and education were 

adequate under chapter 154); ABA 

Guidelines § 5.1(B)(2), at 35, § 8.1(B), at 

46 (recommending skill and training 

requirements for capital counsel). 

Also, the rule in subparagraphs 

(b)(1)(i) and (ii) of § 26.22 identifies 

particular approaches that will be 

considered presumptively adequate, 

namely, those of the Federal capital 

counsel statute, 18 U.S.C. 3599, or the 

IPA, 42 U.S.C. 14163(e)(1), (2)(A) (B), 

(D), (E). These approaches accordingly 

serve as benchmarks, and a State’s 

adoption of competency requirements 

that are likely to result in similar or 

even higher levels of proficiency will 

weigh in favor of a finding of adequacy 

for purposes of chapter 154. Conversely, 

State competency standards that appear 

likely to result in significantly lower 

levels of proficiency compared to the 

benchmark levels risk being found 

inadequate under chapter 154. 

Paragraph (c) of § 26.22—Compensation 

of Counsel 

Paragraph (c) of § 26.22 explains how 

a State may satisfy the requirement that 

it have established a mechanism for the 

compensation of appointed counsel. 28 

U.S.C. 2265(a)(1)(A). The corresponding 

portion of the 2008 regulations assumed 

that levels of compensation for purposes 

of chapter 154 were a matter of State 

discretion, not subject to review by the 

Attorney General, because the statute 

refers simply to ‘‘compensation’’ and 

imposes no further requirement that the 

authorized compensation be ‘‘adequate’’ 

or ‘‘reasonable.’’ See 73 FR at 75331–32. 

However, the broader statutory context 

is the requirement that the State 

establish a mechanism ‘‘for the 

appointment [and] compensation . . . of 

competent counsel.’’ 28 U.S.C. 

2265(a)(1)(A). This requirement reflects 

a determination by Congress that 

reliance on unpaid volunteers to 

represent indigent prisoners under 

sentence of death is insufficient, and a 

State mechanism affording inadequate 

compensation could similarly fall short 

in ensuring the availability of competent 

counsel for appointment. Hence, when 

a State relies on a compensation 

incentive to secure competent counsel, 

chapter 154 is reasonably construed to 

permit the Attorney General to review 

the adequacy of authorized 

compensation. This understanding is 

adopted in § 26.22(c) of the proposed 

rule. 

Paragraph (c)(1) in § 26.22 describes a 

number of possible compensation 

standards that will presumptively be 

considered adequate for purposes of 

chapter 154, generally using as 

benchmarks the authorizations for 

compensation of capital counsel that 

have been deemed adequate in other 

acts of Congress. 

The first option, appearing in 

paragraph (c)(1)(i), is compensation 

comparable to that authorized by 

Congress for representation in Federal 

habeas corpus proceedings reviewing 

State capital cases in 18 U.S.C. 

3599(g)(1). This level of compensation 

should similarly be adequate to ensure 

the availability of competent counsel for 

appointment in such cases at the stage 

of State postconviction review. 

The second option, appearing in 

paragraph (c)(1)(ii), is compensation 

comparable to that of retained counsel 

who meet competency standards 

sufficient under paragraph (b). The IPA 

and the ABA Guidelines similarly 

endorse reliance on market rates for 

legal representation to provide adequate 

compensation for appointed capital 

counsel. See 42 U.S.C. 

14163(e)(2)(F)(ii)(II); ABA Guidelines 

§ 9.1(B)(3), at 49. Compensation 

sufficient to induce competent attorneys 

to carry out such representation for hire 

should likewise be sufficient to attract 

competent attorneys to accept 

appointments for such representation. 

The third option, appearing in 

paragraph (c)(1)(iii), is compensation 

comparable to that of appointed counsel 

in State appellate or trial proceedings in 

capital cases. Cf. 18 U.S.C. 3599(g)(1) 

(authorization for compensation of 

capital counsel not differentiating 

between compensation at different 

stages of representation). The 

compensation afforded at the stages of 

trial and appeal must be sufficient to 

secure competent attorneys to provide 

representation because effective legal 

representation is constitutionally 

required at those stages. Comparable 

compensation should accordingly be 

sufficient for that purpose at the 

postconviction stage. 

The fourth option, appearing in 

paragraph (c)(1)(iv), is compensation 

comparable to that of attorneys 

representing the State in State 

postconviction proceedings in capital 

cases. This option also follows the IPA 

and the ABA Guidelines, which provide 

that capital counsel employed by 

defender organizations should be 

compensated on a salary scale 

commensurate with the salary scale of 

prosecutors in the jurisdiction. 42 

U.S.C. 14163(e)(2)(F)(ii)(I); ABA 

Guidelines § 9.1(B)(2), at 49. The rule 

allows this approach for compensation 

of both public defenders and private 

counsel, but recognizes that private 

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defense counsel may have to pay from 

their own pockets overhead expenses 

that publicly employed prosecutors do 

not bear. The rule accordingly specifies 

that, if paragraph (c)(1)(iv) is relied on 

to justify the level of compensation 

authorized for private counsel, the 

compensation standard should take 

account of overhead costs (if any) that 

are not otherwise payable as reasonable 

litigation expenses. Cf. Baker, 220 F.3d 

at 285–86 (finding that compensation 

resulting in substantial losses to 

appointed counsel was inadequate 

under chapter 154). 

In comparing a State’s compensation 

standards to the benchmarks identified 

in paragraph (c)(1), both hourly rates 

and overall limits on compensation will 

be taken into account. For example, 

under paragraph (c)(1)(iii), suppose that 

State law authorizes the same hourly 

rate for compensation of appointed 

capital counsel at the appellate stage 

and in postconviction proceedings, but 

it specially imposes a low overall limit 

on compensable hours at the 

postconviction stage. The compensation 

authorized at the respective stages may 

then not be comparable in any realistic 

sense, and the objective of ensuring the 

availability of competent counsel for 

postconviction representation may not 

be realized, because counsel who 

accepted such representation would 

effectively be required to function as 

uncompensated volunteers to the extent 

they needed to work beyond the 

maximum number of compensable 

hours. This does not mean that State 

compensation provisions will be 

deemed inadequate if they specially 

prescribe presumptive limits on overall 

compensation at the postconviction 

stage, but comparability to the 

paragraph (c)(1) benchmarks may then 

depend on whether the State provides 

means for authorizing compensation 

beyond the presumptive maximum 

where necessary. Cf. Spears, 283 F.3d at 

1015 (approving a presumptive 200- 

hour limit under chapter 154 where 

compensation was available for work 

beyond that limit if reasonable); Mata v. 

Johnson, 99 F.3d 1261, 1266 (5th Cir. 

1996) (overall $7500 limit on 

compensation was not facially 

inadequate under chapter 154 and was 

not shown inadequate in the particular 

case), vacated in part on other grounds, 

105 F.3d 209 (5th Cir. 1997). 

As with the counsel competency 

benchmarks of paragraph (b)(1), the 

counsel compensation standards of 

paragraph (c)(1) provide only a floor 

that States are free to exceed, and not all 

counsel must be compensated in 

conformity with a single standard. A 

State may adopt alternative standards, 

each comparable to or exceeding some 

benchmark identified in paragraph 

(c)(1), and provide for compensation of 

different counsel or classes of counsel in 

conformity with different standards. For 

example, a State might provide for 

representation of some indigent capital 

petitioners in postconviction 

proceedings by appointed private 

counsel and some by public defender 

personnel, compensate the private 

counsel in conformity with paragraph 

(c)(1)(iii), and compensate the public 

defender counsel in conformity with 

paragraph (c)(1)(iv). 

The rule recognizes that the options 

set out in paragraph (c)(1) of § 26.22 are 

not necessarily the only means by 

which a State may provide 

compensation for competent counsel. 

State compensation provisions for 

capital counsel have been deemed 

adequate for purposes of chapter 154 

and other Federal laws independent of 

any comparison to the benchmarks in 

paragraph (c)(1). See 42 U.S.C. 

14163(e)(2)(F)(i) (under the IPA, State 

may compensate under qualifying 

statutory procedure predating that Act); 

Spears, 283 F.3d at 1015 (State could 

compensate at ‘‘a rate of up to $100 an 

hour, a rate that neither Petitioner nor 

amici argue was unreasonable’’). Also, a 

State may secure representation for 

indigent capital petitioners in 

postconviction proceedings by means 

not dependent on any special financial 

incentive for accepting appointments, 

such as by providing sufficient salaried 

public defender personnel to 

competently carry out such assignments 

as part of their duties. Accordingly, 

under paragraph (c)(2) in § 26.22, capital 

counsel mechanisms involving 

compensation provisions that do not 

satisfy paragraph (c)(1) may be found to 

satisfy the statutory requirement if they 

are otherwise reasonably designed to 

ensure the availability of competent 

counsel. As with § 26.22(b)(2) of the 

rule, mechanisms seeking to qualify 

under paragraph (c)(2) that appear likely 

to provide for significantly lesser 

compensation compared to the 

benchmark levels risk being found 

inadequate under chapter 154. 

Paragraph (d) of § 26.22—Payment of 

Reasonable Litigation Expenses 

Paragraph (d) of § 26.22 incorporates 

the requirement in 28 U.S.C. 

2265(a)(1)(A) to provide for the payment 

of reasonable litigation expenses. An 

inflexible cap on reimbursable litigation 

expenses in capital postconviction 

proceedings could contravene this 

requirement by foreclosing the payment 

of costs incurred by counsel, even if 

determined by the court to be 

reasonably necessary. However, the 

requirement does not foreclose a 

presumptive limit if the State provides 

means for authorizing payment of 

litigation expenses beyond the limit 

where necessary. Cf. 18 U.S.C. 3599(f), 

(g)(2) (establishing presumptive $7500 

limit on payment for litigation expenses 

in Federal court proceedings in capital 

cases, with authority for chief judge or 

delegee to approve higher amounts); 

Mata, 99 F.3d at 1266 (concluding that 

overall $2500 limit on payment of 

litigation expenses was not facially 

inadequate under chapter 154 and was 

not shown to be inadequate in the 

particular case). 

Section 26.23 

Section 26.23 in the rule sets out the 

mechanics of the certification process 

for States seeking to opt in to chapter 

154. 

Paragraph (a) provides that an 

appropriate State official may request in 

writing that the Attorney General 

determine whether the State meets the 

requirements for chapter 154 

certification. Paragraph (b) provides that 

the Attorney General will make the 

request available on the Internet and 

solicit public comment on the request 

by publishing a notice in the Federal 

Register. It requires Internet availability 

because State requests for certification 

may include supporting materials not 

readily reproducible or viewable in the 

Federal Register, such as copies of State 

statutes, rules, and judicial decisions 

bearing on the State’s satisfaction of 

chapter 154’s requirements for 

certification. 

As provided in paragraph (c), the 

Attorney General will review the State’s 

request, including consideration of 

timely public comments received in 

response to a Federal Register notice. 

The Attorney General will decide 

whether the State has satisfied the 

requirements for chapter 154 

certification and will publish the 

certification in the Federal Register if 

certification is granted. The certification 

will include a determination of the date 

the capital counsel mechanism 

qualifying the State for certification was 

established, as that date is the effective 

date of the certification. 28 U.S.C. 

2265(a)(2). 

Paragraph (d) addresses the effect of 

changes or alleged changes in a State’s 

capital counsel mechanism after that 

mechanism has been certified by the 

Attorney General. The paragraph first 

addresses situations involving changes 

or alleged changes in a State’s capital 

counsel mechanism prior to State 

postconviction proceedings in a capital 

case. Chapter 154’s special Federal 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58181 

habeas corpus review procedures apply 

in cases in which two conditions are 

met: (i) the State’s capital counsel 

mechanism has been certified by the 

Attorney General, 28 U.S.C. 2261(b)(1), 

and (ii) ‘‘counsel was appointed 

pursuant to that mechanism’’—i.e., the 

mechanism certified by the Attorney 

General—unless the petitioner ‘‘validly 

waived counsel . . . [or] retained 

counsel . . . or . . . was found not to 

be indigent,’’ 28 U.S.C. 2261(b)(2). The 

first sentence of paragraph (d) therefore 

notes that certification by the Attorney 

General under chapter 154 reflects the 

Attorney General’s determination that 

the State capital counsel mechanism 

examined in the Attorney General’s 

review satisfies chapter 154’s 

requirements. If a State later 

discontinues that mechanism before 

counsel is appointed in a given State 

postconviction proceeding, then counsel 

in that case will not have been 

‘‘appointed pursuant to’’ the mechanism 

that was approved by the Attorney 

General and chapter 154 would 

accordingly be inapplicable in that case. 

Similarly, if a State later changes or is 

alleged to have changed the certified 

mechanism, litigation before Federal 

habeas courts may result under 28 

U.S.C. 2261(b)(2) as to whether the State 

has in fact materially changed its 

mechanism and, if so, whether the 

change means that counsel (even if 

appointed) was appointed pursuant to 

what is effectively a new and 

uncertified mechanism, rather than the 

mechanism certified by the Attorney 

General. 

The second sentence of paragraph (d) 

accordingly provides that a State may 

seek a new certification by the Attorney 

General if there is a change or alleged 

change in a previously certified capital 

counsel mechanism. If a State wishes to 

improve on a certified capital counsel 

mechanism, then certification by the 

Attorney General of the new or revised 

mechanism will allow the State to avoid 

Federal habeas court litigation over 

whether chapter 154 is applicable to 

cases involving appointments made 

pursuant to that mechanism. Similarly, 

if legal questions are raised about the 

continued applicability of chapter 154 

based on changes or alleged changes in 

a certified capital counsel mechanism, a 

State may seek a new certification by 

the Attorney General that its current 

mechanism satisfies chapter 154’s 

requirements, ensuring the continued 

applicability of chapter 154’s special 

Federal habeas corpus procedures. By 

seeking a new certification of a new or 

revised capital counsel mechanism, a 

State may ensure that it is the Attorney 

General, subject to review by the DC 

Circuit Court of Appeals, who 

determines whether its capital counsel 

mechanism is in present compliance 

with chapter 154’s requirements, see 28 

U.S.C. 2261(b)(1), 2265(c)(2), and avoid 

litigation over that matter in the Federal 

habeas courts. 

The final sentence in paragraph (d) 

states that subsequent changes in a 

State’s capital counsel mechanism do 

not affect the applicability of chapter 

154 in cases in which a mechanism 

certified by the Attorney General existed 

throughout State postconviction 

proceedings in the case. For example, 

suppose that the Attorney General 

certifies a State’s capital counsel 

mechanism in 2013, the State 

postconviction proceedings in a capital 

case are carried out in 2014 and 2015 

with counsel in those proceedings 

appointed pursuant to the certified 

mechanism, and Federal habeas corpus 

proceedings in the case commence in 

2016. Suppose further that the State 

makes some change in 2016 to its 

counsel competency or compensation 

standards. Because a certified capital 

counsel mechanism would have been in 

place throughout State postconviction 

review, the prerequisites for expedited 

Federal habeas corpus review under 

chapter 154 would be satisfied. See 28 

U.S.C. 2261(b). That result would not be 

affected by later changes in the State’s 

postconviction capital counsel 

mechanism. 

Section 26.23(e) provides in part that 

a chapter 154 certification remains 

effective for a period of five years. This 

takes account of the possibility of 

changes over time in a State’s standards 

constituting its postconviction capital 

counsel mechanism, and the possibility 

of other changes in a State that may 

affect the continuing sufficiency over 

time of standards initially adopted by a 

State and certified under chapter 154. 

For example, a State provision 

authorizing compensation of counsel at 

a specified hourly rate may initially be 

reasonably designed to ensure the 

availability for appointment of 

competent counsel, but that may no 

longer be the case after the passage of 

years in light of inflation or other 

changed economic circumstances. Cf. 

Durable Mfg. Co., 578 F.3d at 501–02 

(upholding time limitation of validity of 

labor certificates in light of possible 

subsequent changes in economic 

circumstances affecting consistency 

with statutory requirements and 

objectives). Providing for some 

limitation on the lifespan of 

certifications and requiring renewal 

allows questions concerning the 

continued adequacy of the mechanism’s 

standards, including whether they 

continue to apply, to be reexamined at 

regular intervals, each time with 

increased information about a State’s 

actual experience with its mechanism, 

rather than assuming that a oncecompliant State system is compliant 

indefinitely. At the same time, overly 

stringent limits on the duration of 

certifications could unduly burden 

States and undermine the incentive 

States have under chapter 154 to 

undertake the effort to establish 

compliant mechanisms and seek their 

certification. 

Balancing these considerations, 

§ 26.23(e) in the rule provides a basic 

period of five years during which a 

certification remains valid, with further 

provisions regarding the beginning and 

end of the period to promote the 

uninterrupted availability of the benefits 

of chapter 154 to a certified State when 

seeking recertification. As provided in 

28 U.S.C. 2265(a)(2), the effectiveness of 

a certification is backdated to the date 

the certified capital counsel mechanism 

was established, but under the rule the 

five-year limit on its duration does not 

begin to run until the completion of the 

certification process by the Attorney 

General and any related judicial review. 

Moreover, the rule provides that a 

certification remains effective for an 

additional period extending until the 

conclusion of the Attorney General’s 

disposition of the State’s recertification 

request and any judicial review thereof, 

if the State requests recertification at or 

before the end of the five-year period. 

Regulatory Certifications 

Executive Order 13563 and 12866 

As described in Executive Order 

13563, Improving Regulation and 

Regulatory Review (Jan. 18, 2011), 

agencies must, to the extent permitted 

by law, propose or adopt a regulation 

only upon a reasoned determination 

that its benefits justify its costs; tailor 

the regulation to impose the least 

burden on society, consistent with 

obtaining the regulatory objectives; and, 

in choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits. 

Executive Order 13563 recognizes that 

some benefits and costs are difficult to 

quantify and provides that, where 

appropriate and permitted by law, 

agencies may consider and discuss 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

The Department of Justice has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

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58182 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

Executive Order 12866, section 3(f), 

and, accordingly, this rule has been 

reviewed by the Office of Management 

and Budget. The determination that this 

is a significant regulatory action, 

however, does not reflect a conclusion 

that it is ‘‘likely to result in a rule that 

may . . . [h]ave an annual effect on the 

economy of $100 million or more’’ or 

other effects as described in section 

3(f)(1) of the Executive Order. 

This rule has no effect on States 

unless they decide that they wish to 

qualify for chapter 154 certification. If 

States do decide to apply for chapter 

154 certification, the resulting costs will 

mainly depend on (i) the number of 

capital cases these States litigate in State 

postconviction proceedings, and (ii) the 

incremental difference (if any) between 

their current per-case capital litigation 

costs and the corresponding costs under 

a system that complies with this rule. 

These costs cannot be exactly 

quantified because (i) we do not know 

how many States will try to seek 

certification based on their own analysis 

of whether it is beneficial on balance to 

do so; (ii) the rule provides States wide 

latitude to design their own 

appointment mechanism; (iii) the rule 

affords the Attorney General discretion 

in making certification decisions; and 

(iv) there are non-quantifiable benefits 

to providing an opt-in system that may 

outweigh the costs such as improved 

fairness and equity in capital counsel 

systems. Absent a State’s application 

and public comment, the Department 

cannot determine whether the Attorney 

General would decide, in his discretion, 

to certify that the State’s capital counsel 

mechanism satisfies this rule. 

Moreover, even if the Department 

could determine at this time that a 

State’s mechanism fails to meet this 

rule’s standards, the Department does 

not have the data necessary to calculate 

the costs of making the State mechanism 

compliant and the rule gives States 

substantial discretion to correct any 

perceived shortfall in a myriad of ways. 

Thus, any cost projections would need 

to be specific to each State and would 

depend on unknown variables such as 

how a State will design compensation 

and competency standards and whether 

and how the Attorney General will 

exercise discretion. Against this 

background, the Department cannot 

quantify the costs and benefits of this 

rule. 

Despite the impracticability of exact 

quantification, the Department can 

confidently project that the annual cost 

will not exceed $100 million. At the end 

of 2010, 36 States held 3,100 prisoners 

under sentence of death. See Bureau of 

Justice Statistics, Office of Justice 

Programs, U.S. Department of Justice, 

Capital Punishment, 2010—Statistical 

Tables at 8, table 4 (Dec. 2011), 

available at http://www.bjs.gov/content/ 

pub/pdf/cp10st.pdf. Regarding the costs 

of satisfying the requirements of this 

rule, 35 of the 36 States accounting for 

capital cases in the United States 

already provide for appointment of 

counsel in State postconviction 

proceedings. These States may still fall 

short of satisfying this rule’s standards, 

in relation to such matters as payment 

of litigation expenses or compensation 

of counsel, but this rule affords States a 

variety of options that may minimize 

any resulting increase in costs. 

Assuming that all 36 States that 

currently have the death penalty will 

upgrade their postconviction capital 

counsel mechanisms to the extent 

necessary to satisfy this rule, and that 

the number of capital cases pending in 

State postconviction proceedings in a 

year is 2,000, the total cost for the States 

to comply with this rule could not reach 

$100 million unless the average increase 

in litigation costs were $50,000 for each 

case. While for the reasons explained 

above we have not estimated the costs 

for States to satisfy this rule, we have no 

reason to believe that costs would 

increase to that degree. 

States that obtain certification by the 

Attorney General under this rule could 

realize costs savings resulting from 

chapter 154’s expedited procedures in 

subsequent Federal habeas corpus 

review. See 28 U.S.C. 2262, 2264, 2266. 

Chapter 154’s expedited procedures 

offer States the benefits of: (i) Definite 

rules regarding the commencement and 

expiration of stays of execution, see 28 

U.S.C. 2262; (ii) clearer and more 

circumscribed rules regarding the 

claims cognizable on federal habeas 

corpus review, see 28 U.S.C. 2264; (iii) 

general times frames of 450 days and 

120 days respectively for decision of 

capital habeas petitions by federal 

district courts and courts of appeals, see 

28 U.S.C. 2266(b)(1); and (iv) limited 

allowances for the amendment of such 

petitions, see 28 U.S.C. 2266(b)(3). In 

addition, because the States would more 

fully defray the costs of representing 

indigent capital petitioners in State 

postconviction proceedings, there 

would be less need for representation by 

private counsel on a pro bono basis, 

often arranged through postconviction 

capital defense projects. Thus, State 

costs also would be offset by reduced 

costs for private entities and individuals 

who otherwise would provide 

representation, reducing the overall 

economic effect. 

Along with the cost savings States 

could obtain, this rule also affords 

indigent capital petitioners nonquantifiable benefits. If a State chooses 

to ‘‘opt-in’’ to Chapter 154, an indigent 

capital petitioner is more likely to be 

represented by competent counsel in 

state postconviction proceedings— 

proceedings in which there is no 

constitutional right to counsel. The 

timely appointment of qualified counsel 

also provides indigent capital 

petitioners the opportunity to properly 

and promptly present their challenges 

in postconviction proceedings without 

the severe time pressure created by the 

belated entry of a lawyer. Above all, the 

rule’s requirement of timely 

appointment of competent counsel 

seeks to provide an indigent capital 

petitioner the benefit of a collateral 

review that will be fair, thorough, and 

the product of capable and committed 

advocacy. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. It provides only a 

framework for those States that wish to 

qualify for the benefits of the expedited 

habeas procedures of chapter 154 of title 

28 of the United States Code. Therefore, 

in accordance with Executive Order 

13132, it is determined that this rule 

does not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule provides only a framework for 

those States that wish to qualify for the 

benefits of the expedited habeas 

procedures of chapter 154 of title 28 of 

the United States Code. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in aggregate 

expenditures by State, local and tribal 

governments or by the private sector of 

$100,000,000 or more in any one year, 

and it will not significantly or uniquely 

affect small governments. Therefore, no 

actions were deemed necessary under 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58183 

the provisions of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1532. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises 

in domestic and export markets. 

List of Subjects in 28 CFR Part 26 

Law enforcement officers, Prisoners. 

Accordingly, for the reasons set forth 

in the preamble, part 26 of chapter I of 

title 28 of the Code of Federal 

Regulations is amended as follows: 

PART 26—DEATH SENTENCES 

PROCEDURES 

■ 1. The authority citation for part 26 

continues to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 

4002; 28 U.S.C. 509, 510, 2261, 2265. 

■ 2. A new Subpart B is added to part 

26 to read as follows: 

Subpart B—Certification Process for State 

Capital Counsel Systems 

Sec. 

26.20 Purpose. 

26.21 Definitions. 

26.22 Requirements. 

26.23 Certification process. 

Subpart B—Certification Process for 

State Capital Counsel Systems 

§ 26.20 Purpose. 

Sections 2261(b)(1) and 2265(a) of 

title 28 of the United States Code 

require the Attorney General to certify 

whether a State has a mechanism for 

providing legal representation to 

indigent prisoners in State 

postconviction proceedings in capital 

cases that satisfies the requirements of 

chapter 154 of title 28. If the Attorney 

General certifies that a State has 

established such a mechanism, sections 

2262, 2263, 2264, and 2266 of chapter 

154 of title 28 apply in relation to 

Federal habeas corpus review of State 

capital cases in which counsel was 

appointed pursuant to that mechanism. 

These sections will also apply in 

Federal habeas corpus review of capital 

cases from a State with a mechanism 

certified by the Attorney General in 

which petitioner validly waived 

counsel, petitioner retained counsel, or 

petitioner was found not to be indigent, 

as provided in section 2261(b) of title 

28. Subsection (b) of 28 U.S.C. 2265 

directs the Attorney General to 

promulgate regulations to implement 

the certification procedure under 

subsection (a) of that section. 

§ 26.21 Definitions. 

For purposes of this part, the term— 

Appointment means provision of 

counsel in a manner that is reasonably 

timely in light of the time limitations for 

seeking State and Federal 

postconviction review and the time 

required for developing and presenting 

claims in the postconviction 

proceedings. 

Appropriate State official means the 

State attorney general, except that, in a 

State in which the State attorney general 

does not have responsibility for Federal 

habeas corpus litigation, it means the 

chief executive of the State. 

Indigent prisoners means persons 

whose net financial resources and 

income are insufficient to obtain 

qualified counsel. 

State postconviction proceedings 

means collateral proceedings in State 

court, regardless of whether the State 

conducts such proceedings after or 

concurrently with direct State review. 

§ 26.22 Requirements. 

The Attorney General will certify that 

a State meets the requirements for 

certification under 28 U.S.C. 2261 and 

2265 if the Attorney General determines 

that the State has established a 

mechanism for the appointment of 

counsel for indigent prisoners under 

sentence of death in State 

postconviction proceedings that satisfies 

the following standards: 

(a) As provided in 28 U.S.C. 2261(c) 

and (d), the mechanism must offer to all 

such prisoners postconviction counsel, 

who may not be counsel who previously 

represented the prisoner at trial unless 

the prisoner and counsel expressly 

requested continued representation, and 

the mechanism must provide for the 

entry of an order by a court of record— 

(1) Appointing one or more attorneys 

as counsel to represent the prisoner 

upon a finding that the prisoner is 

indigent and accepted the offer or is 

unable competently to decide whether 

to accept or reject the offer; 

(2) Finding, after a hearing if 

necessary, that the prisoner 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 

prisoner is not indigent. 

(b) The mechanism must provide for 

appointment of competent counsel as 

defined in State standards of 

competency for such appointments. 

(1) A State’s standards of competency 

are presumptively adequate if they meet 

or exceed either of the following 

criteria: 

(i) Appointment of counsel who have 

been admitted to the bar for at least five 

years and have at least three years of 

postconviction litigation experience. 

But a court, for good cause, may appoint 

other counsel whose background, 

knowledge, or experience would 

otherwise enable them to properly 

represent the petitioner, with due 

consideration of the seriousness of the 

penalty and the unique and complex 

nature of the litigation; or 

(ii) Appointment of counsel meeting 

qualification standards established in 

conformity with 42 U.S.C. 14163(e)(1) 

and (2)(A), if the requirements of 42 

U.S.C. 14163(e)(2)(B), (D), and (E) are 

also satisfied. 

(2) Competency standards not 

satisfying the benchmark criteria in 

paragraph (b)(1) of this section will be 

deemed adequate only if they otherwise 

reasonably assure a level of proficiency 

appropriate for State postconviction 

litigation in capital cases. 

(c) The mechanism must provide for 

compensation of appointed counsel. 

(1) A State’s provision for 

compensation is presumptively 

adequate if the authorized 

compensation is comparable to or 

exceeds— 

(i) The compensation of counsel 

appointed pursuant to 18 U.S.C. 3599 in 

Federal habeas corpus proceedings 

reviewing capital cases from the State; 

(ii) The compensation of retained 

counsel in State postconviction 

proceedings in capital cases who meet 

State standards of competency sufficient 

under paragraph (b); 

(iii) The compensation of appointed 

counsel in State appellate or trial 

proceedings in capital cases; or 

(iv) The compensation of attorneys 

representing the State in State 

postconviction proceedings in capital 

cases, subject to adjustment for private 

counsel to take account of overhead 

costs not otherwise payable as 

reasonable litigation expenses. 

(2) Provisions for compensation not 

satisfying the benchmark criteria in 

paragraph (c)(1) of this section will be 

deemed adequate only if the State 

mechanism is otherwise reasonably 

designed to ensure the availability for 

appointment of counsel who meet State 

standards of competency sufficient 

under paragraph (b) of this section. 

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58184 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

(d) The mechanism must provide for 

payment of reasonable litigation 

expenses of appointed counsel. Such 

expenses may include, but are not 

limited to, payment for investigators, 

mitigation specialists, mental health and 

forensic science experts, and support 

personnel. Provision for reasonable 

litigation expenses may incorporate 

presumptive limits on payment only if 

means are authorized for payment of 

necessary expenses above such limits. 

§ 26.23 Certification process. 

(a) An appropriate State official may 

request in writing that the Attorney 

General determine whether the State 

meets the requirements for certification 

under § 26.22 of this subpart. 

(b) Upon receipt of a State’s request 

for certification, the Attorney General 

will make the request publicly available 

on the Internet (including any 

supporting materials included in the 

request) and publish a notice in the 

Federal Register— 

(1) Indicating that the State has 

requested certification; 

(2) Identifying the Internet address at 

which the public may view the State’s 

request for certification; and 

(3) Soliciting public comment on the 

request. 

(c) The State’s request will be 

reviewed by the Attorney General. The 

review will include consideration of 

timely public comments received in 

response to the Federal Register notice 

under paragraph (b) of this section, or 

any subsequent notice the Attorney 

General may publish providing a further 

opportunity for comment. The 

certification will be published in the 

Federal Register if certification is 

granted. The certification will include a 

determination of the date the capital 

counsel mechanism qualifying the State 

for certification was established. 

(d) A certification by the Attorney 

General reflects the Attorney General’s 

determination that the State capital 

counsel mechanism reviewed under 

paragraph (c) of this section satisfies 

chapter 154’s requirements. A State may 

request a new certification by the 

Attorney General to ensure the 

continued applicability of chapter 154 

to cases in which State postconviction 

proceedings occur after a change or 

alleged change in the State’s certified 

capital counsel mechanism. Changes in 

a State’s capital counsel mechanism do 

not affect the applicability of chapter 

154 in any case in which a mechanism 

certified by the Attorney General existed 

throughout State postconviction 

proceedings in the case. 

(e) A certification remains effective 

for a period of five years after the 

completion of the certification process 

by the Attorney General and any related 

judicial review. If a State requests recertification at or before the end of that 

five-year period, the certification 

remains effective for an additional 

period extending until the completion 

of the re-certification process by the 

Attorney General and any related 

judicial review. 

Dated: September 11, 2013. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2013–22766 Filed 9–20–13; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0140; FRL–9901–10- 

Region 4] 

Approval and Promulgation of 

Implementation Plans; North Carolina; 

Removal of Stage II Gasoline Vapor 

Recovery Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve changes to the North Carolina 

State Implementation Plan (SIP) 

submitted by the State of North Carolina 

Department of Environment and Natural 

Resources (NC DENR), Division of Air 

Quality on September 18, 2009, for the 

purpose of removing Stage II vapor 

control requirement contingency 

measures for new and upgraded 

gasoline dispensing facilities in the 

State. The September 18, 2009, SIP 

revision also addresses several nonStage II related rule changes. However, 

action on the other portions for the 

September 18, 2009, SIP revision is 

being addressed in a separate 

rulemaking action. EPA has determined 

that North Carolina’s September 18, 

2009, SIP revision regarding the Stage II 

vapor control requirements is 

approvable because it is consistent with 

the Clean Air Act (CAA or Act). 

DATES: Effective Date: This rule will be 

effective October 23, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–0140. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding this action, 

contact Ms. Kelly Sheckler, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Ms. 

Sheckler’s telephone number is (404) 

562–9222; email address: 

sheckler.kelly@epa.gov. 

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Background 

II. Final Action 

III. Statutory and Executive Order Reviews 

I. Background 

EPA, under the CAA Amendments of 

1990, designated (pursuant to section 

107(d)(1)) and classified certain 

counties in North Carolina, either in 

their entirety or portions thereof, as 

‘‘moderate’’ ozone nonattainment areas 

for the 1-hour ozone national ambient 

air quality standards (NAAQS). 

Specifically, the Charlotte-Gastonia 

Area (comprised of Gaston and 

Mecklenburg Counties); the GreensboroWinston-Salem-High Point Area 

(comprised of Davidson, Davis (partial), 

Forsyth and Guilford Counties); and the 

Raleigh-Durham Area (comprised of 

Durham, Granville (partial), and Wake 

Counties) were all designated as 

‘‘moderate’’ ozone nonattainment areas 

for the 1-hour ozone NAAQS. The 

designations were based on the Areas’ 1- 

hour ozone design values for the 1987– 

1989 three-year period. The ‘‘moderate’’ 

classification triggered various statutory 

requirements for these Areas including 

the Stage II vapor recovery requirements 

pursuant to section 182(b)(3) of the 

CAA. 

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