I

104TH CONGRESS

1ST SESSION H. R. 729

To control crime by a more effective death penalty.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 30, 1995

Mr. MCCOLLUM introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To control crime by a more effective death penalty.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Effective Death Penalty Act of 1995’’.

6 (b) TABLE OF CONTENTS.—The table of contents is

7 as follows:

Sec. 1. Short title; table of contents.

TITLE I—HABEAS CORPUS REFORM

SUBTITLE A—POST CONVICTION PETITIONS: GENERAL HABEAS CORPUS

REFORM

Sec. 101. Period of limitation for filing writ of habeas corpus following final

judgment of a State court.
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Sec. 102. Authority of appellate judges to issue certificates of probable cause

for appeal in habeas corpus and Federal collateral relief proceedings.

Sec. 103. Conforming amendment to the rules of appellate procedure.

Sec. 104. Effect of failure to exhaust State remedies.

Sec. 105. Period of limitation for Federal prisoners filing for collateral remedy.

SUBTITLE B—SPECIAL PROCEDURES FOR COLLATERAL PROCEEDINGS IN

CAPITAL CASES

Sec. 111. Death penalty litigation procedures.

SUBTITLE C—FUNDING FOR LITIGATION OF FEDERAL HABEAS CORPUS

PETITIONS IN CAPITAL CASES

Sec. 121. Funding for death penalty prosecutions.

TITLE II—FEDERAL DEATH PENALTY PROCEDURES REFORM

Sec. 201. Federal death penalty procedures reform.

1 TITLE I—EFFECTIVE DEATH

2 PENALTY

3 Subtitle A—Post Conviction Peti4 tions: General Habeas Corpus

5 Reform

6 SEC. 101. PERIOD OF LIMITATION FOR FILING WRIT OF HA7 BEAS CORPUS FOLLOWING FINAL JUDGMENT

8 OF A STATE COURT.

9 Section 2244 of title 28, United States Code, is

10 amended by adding at the end the following:

11 ‘‘(d)(1) A one-year period of limitation shall apply to

12 an application for a writ of habeas corpus by a person

13 in custody pursuant to the judgment of a State court. The

14 limitation period shall run from the latest of the following

15 times:
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1 ‘‘(A) The time at which the judgment became

2 final by the conclusion of direct review or the expira3 tion of the time for seeking such review.

4 ‘‘(B) The time at which the impediment to fil5 ing an application created by State action in viola6 tion of the Constitution or laws of the United States

7 is removed, where the applicant was prevented from

8 filing by such State action.

9 ‘‘(C) The time at which the Federal right as10 serted was initially recognized by the Supreme

11 Court, where the right has been newly recognized by

12 the Court and is retroactively applicable.

13 ‘‘(D) The time at which the factual predicate of

14 the claim or claims presented could have been dis15 covered through the exercise of reasonable diligence.

16 ‘‘(2) Time that passes during the pendency of a prop17 erly filed application for State review with respect to the

18 pertinent judgment or claim shall not be counted toward

19 any period of limitation under this subsection.’’.

20 SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE

21 CERTIFICATES OF PROBABLE CAUSE FOR AP22 PEAL IN HABEAS CORPUS AND FEDERAL COL23 LATERAL RELIEF PROCEEDINGS.

24 Section 2253 of title 28, United States Code, is

25 amended to read as follows:
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1 ‘‘§ 2253. Appeal

2 ‘‘(a) In a habeas corpus proceeding or a proceeding

3 under section 2255 of this title before a circuit or district

4 judge, the final order shall be subject to review, on appeal,

5 by the court of appeals for the circuit where the proceed6 ing is had.

7 ‘‘(b) There shall be no right of appeal from such an

8 order in a proceeding to test the validity of a warrant to

9 remove, to another district or place for commitment or

10 trial, a person charged with a criminal offense against the

11 United States, or to test the validity of his detention pend12 ing removal proceedings.

13 ‘‘(c) An appeal may not be taken to the court of ap14 peals from the final order in a habeas corpus proceeding

15 where the detention complained of arises out of process

16 issued by a State court, or from the final order in a pro17 ceeding under section 2255 of this title, unless a circuit

18 justice or judge issues a certificate of probable cause. A

19 certificate of probable cause may only issue if the peti20 tioner has made a substantial showing of the denial of a

21 Federal right. The certificate of probable cause must indi22 cate which specific issue or issues satisfy this standard.’’.

23 SEC. 103. CONFORMING AMENDMENT TO THE RULES OF AP24 PELLATE PROCEDURE.

25 Federal Rule of Appellate Procedure 22 is amended

26 to read as follows:
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1 ‘‘RULE 22

2 ‘‘HABEAS CORPUS AND SECTION 2255 PROCEEDINGS

3 ‘‘(a) APPLICATION FOR AN ORIGINAL WRIT OF HA4 BEAS CORPUS.—An application for a writ of habeas cor5 pus shall be made to the appropriate district court. If ap6 plication is made to a circuit judge, the application will

7 ordinarily be transferred to the appropriate district court.

8 If an application is made to or transferred to the district

9 court and denied, renewal of the application before a cir10 cuit judge is not favored; the proper remedy is by appeal

11 to the court of appeals from the order of the district court

12 denying the writ.

13 ‘‘(b) NECESSITY OF CERTIFICATE OF PROBABLE

14 CAUSE FOR APPEAL.—In a habeas corpus proceeding in

15 which the detention complained of arises out of process

16 issued by a State court, and in a motion proceeding pursu17 ant to section 2255 of title 28, United States Code, an

18 appeal by the applicant or movant may not proceed unless

19 a circuit judge issues a certificate of probable cause. If

20 a request for a certificate of probable cause is addressed

21 to the court of appeals, it shall be deemed addressed to

22 the judges thereof and shall be considered by a circuit

23 judge or judges as the court deems appropriate. If no ex24 press request for a certificate is filed, the notice of appeal

25 shall be deemed to constitute a request addressed to the
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1 judges of the court of appeals. If an appeal is taken by

2 a State or the Government or its representative, a certifi3 cate of probable cause is not required.’’.

4 SEC. 104. EFFECT OF FAILURE TO EXHAUST STATE REM5 EDIES.

6 Section 2254(b) of title 28, United States Code, is

7 amended to read as follows:

8 ‘‘(b) An application for a writ of habeas corpus in

9 behalf of a person in custody pursuant to the judgment

10 of a State court shall not be granted unless it appears

11 that the applicant has exhausted the remedies available

12 in the courts of the State, or that there is either an ab13 sence of available State corrective process or the existence

14 of circumstances rendering such process ineffective to pro15 tect the rights of the applicant. An application may be

16 denied on the merits notwithstanding the failure of the

17 applicant to exhaust the remedies available in the courts

18 of the State. A State shall not be deemed to have waived

19 the exhaustion requirement, or be estopped from reliance

20 upon the requirement unless through its counsel it waives

21 the requirement expressly.’’.

22 SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRIS23 ONERS FILING FOR COLLATERAL REMEDY.

24 Section 2255 of title 28, United States Code, is

25 amended by striking the second paragraph and the penul-
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1 timate paragraph thereof, and by adding at the end the

2 following new paragraphs:

3 ‘‘A two-year period of limitation shall apply to a mo4 tion under this section. The limitation period shall run

5 from the latest of the following times:

6 ‘‘(1) The time at which the judgment of convic7 tion becomes final.

8 ‘‘(2) The time at which the impediment to mak9 ing a motion created by governmental action in vio10 lation of the Constitution or laws of the United

11 States is removed, where the movant was prevented

12 from making a motion by such governmental action.

13 ‘‘(3) The time at which the right asserted was

14 initially recognized by the Supreme Court, where the

15 right has been newly recognized by the Court and is

16 retroactively applicable.

17 ‘‘(4) The time at which the factual predicate of

18 the claim or claims presented could have been dis19 covered through the exercise of reasonable dili20 gence.’’.
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1 Subtitle B—Special Procedures for Collateral

2 Proceedings in Capital Cases

3 SEC. 111. DEATH PENALTY LITIGATION PROCEDURES.

4 (a) IN GENERAL.—Title 28, United States Code, is

5 amended by inserting the following new chapter after

6 chapter 153:

7 ‘‘CHAPTER 154—SPECIAL HABEAS CORPUS

8 PROCEDURES IN CAPITAL CASES

‘‘Sec.

‘‘2256. Prisoners in State custody subject to capital sentence; appointment of

counsel; requirement of rule of court or statute; procedures for

appointment.

‘‘2257. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.

‘‘2258. Filing of habeas corpus petition; time requirements; tolling rules.

‘‘2259. Scope of Federal review; district court adjudications.

‘‘2260. Certificate of probable cause inapplicable.

‘‘2261. Application to State unitary review procedures.

‘‘2262. Limitation periods for determining petitions.

‘‘2263. Rule of construction.

9 ‘‘§ 2256. Prisoners in State custody subject to capital

10 sentence; appointment of counsel; re11 quirement of rule of court or statute; pro12 cedures for appointment

13 ‘‘(a) This chapter shall apply to cases arising under

14 section 2254 brought by prisoners in State custody who

15 are subject to a capital sentence. It shall apply only if the

16 provisions of subsections (b) and (c) are satisfied.

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

18 by rule of its court of last resort or by statute a mecha19 nism for the appointment, compensation and payment of
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1 reasonable litigation expenses of competent counsel in

2 State postconviction proceedings brought by indigent pris3 oners whose capital convictions and sentences have been

4 upheld on direct appeal to the court of last resort in the

5 State or have otherwise become final for State law pur6 poses. The rule of court or statute must provide standards

7 of competency for the appointment of such counsel.

8 ‘‘(c) Any mechanism for the appointment, compensa9 tion and reimbursement of counsel as provided in sub10 section (b) must offer counsel to all State prisoners under

11 capital sentence and must provide for the entry of an

12 order by a court of record: (1) appointing one or more

13 counsel to represent the prisoner upon a finding that the

14 prisoner is indigent and accepted the offer or is unable

15 competently to decide whether to accept or reject the offer;

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

17 rejected the offer of counsel and made the decision with

18 an understanding of its legal consequences; or (3) denying

19 the appointment of counsel upon a finding that the pris20 oner is not indigent.

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

22 (b) and (c) to represent a State prisoner under capital

23 sentence shall have previously represented the prisoner at

24 trial or on direct appeal in the case for which the appoint-
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1 ment is made unless the prisoner and counsel expressly

2 request continued representation.

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

4 during State or Federal collateral postconviction proceed5 ings in a capital case shall not be a ground for relief in

6 a proceeding arising under section 2254 of this chapter.

7 This limitation shall not preclude the appointment of dif8 ferent counsel, on the court’s own motion or at the request

9 of the prisoner, at any phase of State or Federal

10 postconviction proceedings on the basis of the ineffective11 ness or incompetence of counsel in such proceedings.

12 ‘‘§ 2257. Mandatory stay of execution; duration; limits

13 on stays of execution; successive peti14 tions

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

16 of record of an order under section 2256(c), a warrant

17 or order setting an execution date for a State prisoner

18 shall be stayed upon application to any court that would

19 have jurisdiction over any proceedings filed under section

20 2254. The application must recite that the State has in21 voked the postconviction review procedures of this chapter

22 and that the scheduled execution is subject to stay.

23 ‘‘(b) A stay of execution granted pursuant to sub24 section (a) shall expire if—
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1 ‘‘(1) a State prisoner fails to file a habeas cor2 pus petition under section 2254 within the time re3 quired in section 2258, or fails to make a timely ap4 plication for court of appeals review following the de5 nial of such a petition by a district court;

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

7 of appeals review under section 2254 the petition for

8 relief is denied and (A) the time for filing a petition

9 for certiorari has expired and no petition has been

10 filed; (B) a timely petition for certiorari was filed

11 and the Supreme Court denied the petition; or (C)

12 a timely petition for certiorari was filed and upon

13 consideration of the case, the Supreme Court dis14 posed of it in a manner that left the capital sentence

15 undisturbed; or

16 ‘‘(3) before a court of competent jurisdiction, in

17 the presence of counsel and after having been ad18 vised of the consequences of his decision, a State

19 prisoner under capital sentence waives the right to

20 pursue habeas corpus review under section 2254.

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

22 occurred, no Federal court thereafter shall have the au23 thority to enter a stay of execution or grant relief in a

24 capital case unless—
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1 ‘‘(1) the basis for the stay and request for relief

2 is a claim not previously presented in the State or

3 Federal courts;

4 ‘‘(2) the failure to raise the claim is (A) the re5 sult of State action in violation of the Constitution

6 or laws of the United States; (B) the result of the

7 Supreme Court recognition of a new Federal right

8 that is retroactively applicable; or (C) based on a

9 factual predicate that could not have been discovered

10 through the exercise of reasonable diligence in time

11 to present the claim for State or Federal

12 postconviction review; and

13 ‘‘(3) the facts underlying the claim would be

14 sufficient to establish by clear and convincing evi15 dence that but for constitutional error, no reasonable

16 fact finder would have found the petitioner guilty of

17 the underlying offense.

18 ‘‘(d) Notwithstanding any other provision of law, no

19 Federal district court or appellate judge shall have the au20 thority to enter a stay of execution, issue injunctive relief,

21 or grant any equitable or other relief in a capital case on

22 any successive habeas petition unless the court first deter23 mines the petition or other action does not constitute an

24 abuse of the writ. This determination shall be made only

25 by the district judge or appellate panel who adjudicated
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1 the merits of the original habeas petition (or to the district

2 judge or appellate panel to which the case may have been

3 subsequently assigned as a result of the unavailability of

4 the original court or judges). In the Federal courts of ap5 peal, a stay may issue pursuant to the terms of this provi6 sion only when a majority of the original panel or majority

7 of the active judges determines the petition does not con8 stitute an abuse of the writ.

9 ‘‘§ 2258. Filing of habeas corpus petition; time re10 quirements; tolling rules

11 ‘‘Any petition for habeas corpus relief under section

12 2254 must be filed in the appropriate district court within

13 one hundred and eighty days from the filing in the appro14 priate State court of record of an order under section

15 2256(c). The time requirements established by this section

16 shall be tolled—

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

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

19 disposition of the petition if a State prisoner files

20 the petition to secure review by the Supreme Court

21 of the affirmance of a capital sentence on direct re22 view by the court of last resort of the State or other

23 final State court decision on direct review;

24 ‘‘(2) during any period in which a State pris25 oner under capital sentence has a properly filed re-
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1 quest for postconviction review pending before a

2 State court of competent jurisdiction; if all State fil3 ing rules are met in a timely manner, this period

4 shall run continuously from the date that the State

5 prisoner initially files for postconviction review until

6 final disposition of the case by the highest court of

7 the State, but the time requirements established by

8 this section are not tolled during the pendency of a

9 petition for certiorari before the Supreme Court ex10 cept as provided in paragraph (1); and

11 ‘‘(3) during an additional period not to exceed

12 sixty days, if (A) a motion for an extension of time

13 is filed in the Federal district court that would have

14 proper jurisdiction over the case upon the filing of

15 a habeas corpus petition under section 2254; and

16 (B) a showing of good cause is made for the failure

17 to file the habeas corpus petition within the time pe18 riod established by this section.

19 ‘‘§ 2259. Scope of Federal review; district court adju20 dications

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

23 chapter applies, the district court shall only consider a

24 claim or claims that have been raised and decided on the
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1 merits in the State courts, unless the failure to raise the

2 claim properly is—

3 ‘‘(1) the result of State action in violation of

4 the Constitution or laws of the United States;

5 ‘‘(2) the result of the Supreme Court recogni6 tion of a new Federal right that is retroactively ap7 plicable; or

8 ‘‘(3) based on a factual predicate that could not

9 have been discovered through the exercise of reason10 able diligence in time to present the claim for State

11 or Federal postconviction review.

12 ‘‘(b) Following review subject to the constraints set

13 forth in subsection (a) and section 2254(d) of this title,

14 the court shall rule on the claims properly before it.’’.

15 ‘‘§ 2260. Certificate of probable cause inapplicable

16 ‘‘The requirement of a certificate of probable cause

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

18 appeals does not apply to habeas corpus cases subject to

19 the provisions of this chapter except when a second or suc20 cessive petition is filed.

21 ‘‘§ 2261. Application to State unitary review proce22 dure

23 ‘‘(a) For purposes of this section, a ‘unitary review’

24 procedure means a State procedure that authorizes a per25 son under sentence of death to raise, in the course of di-
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1 rect review of the judgment, such claims as could be raised

2 on collateral attack. The provisions of this chapter shall

3 apply, as provided in this section, in relation to a State

4 unitary review procedure if the State establishes by rule

5 of its court of last resort or by statute a mechanism for

6 the appointment, compensation and payment of reasonable

7 litigation expenses of competent counsel in the unitary re8 view proceedings, including expenses relating to the litiga9 tion of collateral claims in the proceedings. The rule of

10 court or statute must provide standards of competency for

11 the appointment of such counsel.

12 ‘‘(b) A unitary review procedure, to qualify under this

13 section, must include an offer of counsel following trial

14 for the purpose of representation on unitary review, and

15 entry of an order, as provided in section 2256(c), concern16 ing appointment of counsel or waiver or denial of appoint17 ment of counsel for that purpose. No counsel appointed

18 to represent the prisoner in the unitary review proceedings

19 shall have previously represented the prisoner at trial in

20 the case for which the appointment is made unless the

21 prisoner and counsel expressly request continued represen22 tation.

23 ‘‘(c) Sections 2257, 2258, 2259, 2260, and 2262

24 shall apply in relation to cases involving a sentence of

25 death from any State having a unitary review procedure
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1 that qualifies under this section. References to State ‘post2 conviction review’ and ‘direct review’ in those sections

3 shall be understood as referring to unitary review under

4 the State procedure. The references in sections 2257(a)

5 and 2258 to ‘an order under section 2256(c)’ shall be un6 derstood as referring to the post-trial order under sub7 section (b) concerning representation in the unitary review

8 proceedings, but if a transcript of the trial proceedings

9 is unavailable at the time of the filing of such an order

10 in the appropriate State court, then the start of the one

11 hundred and eighty day limitation period under section

12 2258 shall be deferred until a transcript is made available

13 to the prisoner or his counsel.

14 ‘‘§ 2262. Limitation periods for determining petitions

15 ‘‘(a)(1) A Federal district court shall determine such

16 a petition or motion within 60 days of any argument heard

17 on an evidentiary hearing, or where no evidentiary hearing

18 is held, within 60 days of any final argument heard in

19 the case.

20 ‘‘(2)(A) The court of appeals shall determine any ap21 peal relating to such a petition or motion within 90 days

22 after the filing of any reply brief or within 90 days after

23 such reply brief would be due. For purposes of this provi24 sion, any reply brief shall be due within 14 days of the

25 opposition brief.
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1 ‘‘(B) The court of appeals shall decide any petition

2 for rehearing and or request by an appropriate judge for

3 rehearing en banc within 20 days of the filing of such a

4 petition or request unless a responsive pleading is required

5 in which case the court of appeals shall decide the applica6 tion within 20 days of the filing of the responsive pleading.

7 If en banc consideration is granted, the en banc court shall

8 determine the appeal within 90 days of the decision to

9 grant such consideration.

10 ‘‘(3) The time limitations contained in paragraphs

11 (1) and (2) may be extended only once for 20 days, upon

12 an express good cause finding by the court that the inter13 ests of justice warrant such a one-time extension. The spe14 cific grounds for the good cause finding shall be set forth

15 in writing in any extension order of the court.

16 ‘‘(b) The time limitations under subsection (a) shall

17 apply to an initial petition or motion, and to any second

18 or successive petition or motion. The same limitations

19 shall also apply to the re-determination of a petition or

20 motion or related appeal following a remand by the court

21 of appeals or the Supreme Court for further proceedings,

22 and in such a case the limitation period shall run from

23 the date of the remand.

24 ‘‘(c) The time limitations under this section shall not

25 be construed to entitle a petitioner or movant to a stay
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1 of execution, to which the petitioner or movant would oth2 erwise not be entitled, for the purpose of litigating any

3 petition, motion, or appeal.

4 ‘‘(d) The failure of a court to meet or comply with

5 the time limitations under this section shall not be a

6 ground for granting relief from a judgment of conviction

7 or sentence. The State or Government may enforce the

8 time limitations under this section by applying to the court

9 of appeals or the Supreme Court for a writ of mandamus.

10 ‘‘(e) The Administrative Office of United States

11 Courts shall report annually to Congress on the compli12 ance by the courts with the time limits established in this

13 section.

14 ‘‘(f) The adjudication of any petition under section

15 2254 of this title that is subject to this chapter, and the

16 adjudication of any motion under section 2255 of this title

17 by a person under sentence of death, shall be given prior18 ity by the district court and by the court of appeals over

19 all noncapital matters.

20 ‘‘§ 2263. Rule of construction

21 ‘‘This chapter shall be construed to promote the expe22 ditious conduct and conclusion of State and Federal court

23 review in capital cases.’’.

24 (b) CLERICAL AMENDMENT.—The table of chapters

25 at the beginning of part VI of title 28, United States Code,
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1 is amended by inserting after the item relating to chapter

2 153 the following new item:

‘‘154. Special habeas corpus procedures in capital cases 2256’’.

3 Subtitle C—Funding for Litigation of Federal

4 Habeas Corpus Petitions in Capital Cases

5 SEC. 121. FUNDING FOR DEATH PENALTY PROSECUTIONS.

6 Part E of title I of the Omnibus Crime Control and

7 Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is

8 amended by adding at the end the following new section:

9 ‘‘SEC. 515. Notwithstanding any other provision of

10 this subpart, the Director shall provide grants to the

11 States, from the funding allocated pursuant to section

12 511, for the purpose of supporting litigation pertaining to

13 Federal habeas corpus petitions in capital cases. The total

14 funding available for such grants within any fiscal year

15 shall be equal to the funding provided to capital resource

16 centers, pursuant to Federal appropriation, in the same

17 fiscal year.’’.

18 TITLE II—FEDERAL DEATH PEN19 ALTY PROCEDURES REFORM

20 SEC. 201. FEDERAL DEATH PENALTY PROCEDURES RE21 FORM.

22 (a) IN GENERAL.—Subsection (e) of section 3593 of

23 title 18, United States Code, is amended by striking

24 ‘‘Based upon this consideration’’ and all that follows

25 through the end of such subsection and inserting the fol-
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1 lowing: ‘‘The jury, or if there is no jury, the court, shall

2 then consider whether the aggravating factor or factors

3 found to exist outweigh any mitigating factors. The jury,

4 or if there is no jury, the court shall recommend a sen5 tence of death if it unanimously finds at least one aggra6 vating factor and no mitigating factor or if it finds one

7 or more aggravating factors which outweigh any mitigat8 ing factors. In any other case, it shall not recommend a

9 sentence of death. The jury shall be instructed that it

10 must avoid any influence of sympathy, sentiment, passion,

11 prejudice, or other arbitrary factors in its decision, and

12 should make such a recommendation as the information

13 warrants. The jury shall be instructed that its rec14 ommendation concerning a sentence of death is to be

15 based on the aggravating factor or factors and any miti16 gating factors which have been found, but that the final

17 decision concerning the balance of aggravating and miti18 gating factors is a matter for the jury’s judgment.’’.

19 (b) CONFORMING AMENDMENT.—Section 3594 of

20 title 18, United States Code, is amended by striking ‘‘or

21 life imprisonment without possibility of release’’.

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