right has been newly recognized by the Court and is
retroactively applicable.
‘‘(4) The time at which the factual predicate of
the claim or claims presented could have been dis-
covered through the exercise of reasonable dili-
gence.’’.
Subtitle B—Special Procedures for
Collateral Proceedings in Cap-
ital Cases
SEC. 811. DEATH PENALTY LITIGATION PROCEDURES.
(a) IN GENERAL.—Title 28, United States Code, is
amended by inserting immediately after chapter 153 the
following new chapter:
‘‘CHAPTER 154—SPECIAL HABEAS CORPUS
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; suc-
cessive petitions.
‘‘2258. Filing of habeas corpus petition; time requirements; tolling rules.
‘‘2259. Evidentiary hearings; scope of Federal review; district court adjudica-
tion.
‘‘2260. Certificate of probable cause inapplicable.
‘‘2261. Application to State unitary review procedures.
‘‘2262. Limitation periods for determining petitions.
‘‘2263. Rule of construction.
‘‘§ 2256. Prisoners in State custody subject to capital
sentence; appointment of counsel; re-
quirement of rule of court or statute; pro-
cedures for appointment
‘‘(a) This chapter shall apply to cases arising under
section 2254 brought by prisoners in State custody who
are subject to a capital sentence. It shall apply only if the
provisions of subsections (b) and (c) are satisfied.
‘‘(b) This chapter is applicable if a State establishes
by rule of its court of last resort or by statute a mecha-
nism for the appointment, compensation and payment of
reasonable litigation expenses of competent counsel in
State postconviction proceedings brought by indigent pris-
oners whose capital convictions and sentences have been
upheld on direct appeal to the court of last resort in the
State or have otherwise become final for State law pur-
poses. The rule of court or statute must provide standards
of competency for the appointment of such counsel.
‘‘(c) Any mechanism for the appointment, compensa-
tion and reimbursement of counsel as provided in sub-
section (b) must offer counsel to all State prisoners under
capital sentence and must provide for the entry of an
order by a court of record: (1) appointing one or more
counsel to represent the 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 pris-
oner is not indigent.
‘‘(d) No counsel appointed pursuant to subsections
(b) and (c) to represent a State prisoner under capital
sentence shall have previously represented the prisoner at
trial or on direct appeal in the case for which the appoint-
ment is made unless the prisoner and counsel expressly
request continued representation.
‘‘(e) The ineffectiveness or incompetence of counsel
during State or Federal collateral postconviction proceed-
ings in a capital case shall not be a ground for relief in
a proceeding arising under section 2254 of this chapter.
This limitation shall not preclude the appointment of dif-
ferent counsel, on the court’s own motion or at the request
of the prisoner, at any phase of State or Federal
postconviction proceedings on the basis of the ineffective-
ness or incompetence of counsel in such proceedings.
‘‘§ 2257. Mandatory stay of execution; duration; limits
on stays of execution; successive peti-
tions
‘‘(a) Upon the entry in the appropriate State court
of record of an order under section 2256(c), a warrant
or order setting an execution date for a State prisoner
shall be stayed upon application to any court that would
have jurisdiction over any proceedings filed under section
2254. The application must recite that the State has in-
voked the postconviction review procedures of this chapter
and that the scheduled execution is subject to stay.
‘‘(b) A stay of execution granted pursuant to sub-
section (a) shall expire if—
‘‘(1) a State prisoner fails to file a habeas cor-
pus petition under section 2254 within the time re-
quired in section 2258, or fails to make a timely ap-
plication for court of appeals review following the de-
nial of such a petition by a district court;
‘‘(2) upon completion of district court and court
of appeals review under section 2254 the petition for
relief is denied and (A) the time for filing a petition
for certiorari has expired and no petition has been
filed; (B) a timely petition for certiorari was filed
and the Supreme Court denied the petition; or (C)
a timely petition for certiorari was filed and upon
consideration of the case, the Supreme Court dis-
posed of it in a manner that left the capital sentence
undisturbed; or
‘‘(3) before a court of competent jurisdiction, in
the presence of counsel and after having been ad-
vised of the consequences of his decision, a State
prisoner under capital sentence waives the right to
pursue habeas corpus review under section 2254.
‘‘(c) If one of the conditions in subsection (b) has
occurred, no Federal court thereafter shall have the au-
thority to enter a stay of execution or grant relief in a
capital case unless—
‘‘(1) the basis for the stay and request for relief
is a claim not previously presented in the State or
Federal courts;
‘‘(2) the failure to raise the claim is (A) the re-
sult of State action in violation of the Constitution
or laws of the United States; (B) the result of the
Supreme Court recognition of a new Federal right
that is retroactively applicable; or (C) based on a
factual predicate that could not have been discovered
through the exercise of reasonable diligence in time
to present the claim for State or Federal
postconviction review; and
‘‘(3) the facts underlying the claim would be
sufficient, if proven, to undermine the court’s con-
fidence in the determination of guilt on the offense
or offenses for which the death penalty was imposed.
‘‘§ 2258. Filing of habeas corpus petition; time re-
quirements; tolling rules
‘‘Any petition for habeas corpus relief under section
2254 must be filed in the appropriate district court within
one hundred and eighty days from the filing in the appro-
priate State court of record of an order under section
2256(c). The time requirements established by this section
shall be tolled—
‘‘(1) from the date that a petition for certiorari
is filed in the Supreme Court until the date of final
disposition of the petition if a State prisoner files
the petition to secure review by the Supreme Court
of the affirmance of a capital sentence on direct re-
view by the court of last resort of the State or other
final State court decision on direct review;
‘‘(2) during any period in which a State pris-
oner under capital sentence has a properly filed re-
quest for postconviction review pending before a
State court of competent jurisdiction; if all State fil-
ing rules are met in a timely manner, this period
shall run continuously from the date that the State
prisoner initially files for postconviction review until
final disposition of the case by the highest court of
the State, but the time requirements established by
this section are not tolled during the pendency of a