IB
Union Calendar No. 10
104TH CONGRESS
1ST SESSION
H. R. 729
[Report No. 104–23]
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
FEBRUARY 8, 1995
Additional sponsors: Mr. BRYANT of Tennessee, Mr. BLILEY, Mr. ENGLISH
of Pennsylvania, Mr. WELLER, and Mr. ROYCE
FEBRUARY 8, 1995
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on January 30, 1995]
A BILL
To control crime by a more effective death penalty.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Ef-
fective Death Penalty Act of 1995’’.
(b) TABLE OF CONTENTS.—The table of contents is 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.
Sec. 102. Authority of appellate judges to issue certificates of probable cause for
appeal in habeas corpus and Federal collateral relief proceed-
ings.
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.
TITLE I—EFFECTIVE DEATH
PENALTY
Subtitle A—Post Conviction Peti-
tions: General Habeas Corpus
Reform
SEC. 101. PERIOD OF LIMITATION FOR FILING WRIT OF HA-
BEAS CORPUS FOLLOWING FINAL JUDGMENT
OF A STATE COURT.
Section 2244 of title 28, United States Code, is amend-
ed by adding at the end the following:
‘‘(d)(1) A one-year period of limitation shall apply to
an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The lim-
itation period shall run from the latest of the following
times:
‘‘(A) The time at which the judgment became
final by the conclusion of direct review or the expira-
tion of the time for seeking such review.
‘‘(B) The time at which the impediment to filing
an application created by State action in violation of
the Constitution or laws of the United States is re-
moved, where the applicant was prevented from filing
by such State action.
‘‘(C) The time at which the Federal right as-
serted was initially recognized by the Supreme Court,
where the right has been newly recognized by the
Court and is retroactively applicable.
‘‘(D) The time at which the factual predicate of
the claim or claims presented could have been discov-
ered through the exercise of reasonable diligence.
‘‘(2) Time that passes during the pendency of a prop-
erly filed application for State review with respect to the
pertinent judgment or claim shall not be counted toward
any period of limitation under this subsection.’’.
SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE
CERTIFICATES OF PROBABLE CAUSE FOR AP-
PEAL IN HABEAS CORPUS AND FEDERAL COL-
LATERAL RELIEF PROCEEDINGS.
Section 2253 of title 28, United States Code, is amend-
ed to read as follows:
‘‘§ 2253. Appeal
‘‘(a) In a habeas corpus proceeding or a proceeding
under section 2255 of this title before a circuit or district
judge, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit where the proceeding
is had.
‘‘(b) There shall be no right of appeal from such an
order in a proceeding to test the validity of a warrant to
remove, to another district or place for commitment or trial,
a person charged with a criminal offense against the United
States, or to test the validity of his detention pending re-
moval proceedings.
‘‘(c) An appeal may not be taken to the court of ap-
peals from the final order in a habeas corpus proceeding
where the detention complained of arises out of process is-
sued by a State court, or from the final order in a proceed-
ing under section 2255 of this title, unless a circuit justice
or judge issues a certificate of probable cause. A certificate
of probable cause may only issue if the petitioner has made
a substantial showing of the denial of a Federal right. The
certificate of probable cause must indicate which specific
issue or issues satisfy this standard.’’.
SEC. 103. CONFORMING AMENDMENT TO THE RULES OF AP-
PELLATE PROCEDURE.
Federal Rule of Appellate Procedure 22 is amended to
read as follows:
‘‘RULE 22
‘‘HABEAS CORPUS AND SECTION 2255 PROCEEDINGS
‘‘(a) APPLICATION FOR AN ORIGINAL WRIT OF HA-
BEAS CORPUS.—An application for a writ of habeas corpus
shall be made to the appropriate district court. If applica-
tion is made to a circuit judge, the application will ordi-
narily be transferred to the appropriate district court. If
an application is made to or transferred to the district
court and denied, renewal of the application before a circuit
judge is not favored; the proper remedy is by appeal to the
court of appeals from the order of the district court denying
the writ.
‘‘(b) NECESSITY
OF
CERTIFICATE
OF
PROBABLE
CAUSE FOR APPEAL.—In a habeas corpus proceeding in
which the detention complained of arises out of process is-
sued by a State court, and in a motion proceeding pursuant
to section 2255 of title 28, United States Code, an appeal
by the applicant or movant may not proceed unless a cir-
cuit judge issues a certificate of probable cause. If a request
for a certificate of probable cause is addressed to the court
of appeals, it shall be deemed addressed to the judges thereof
and shall be considered by a circuit judge or judges as the
court deems appropriate. If no express request for a certifi-
cate is filed, the notice of appeal shall be deemed to con-
stitute a request addressed to the judges of the court of ap-
peals. If an appeal is taken by a State or the Government
or its representative, a certificate of probable cause is not
required.’’.
SEC. 104. EFFECT OF FAILURE TO EXHAUST STATE REM-
EDIES.
Section 2254(b) of title 28, United States Code, is
amended to read as follows:
‘‘(b) An application for a writ of habeas corpus in be-
half of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that
the applicant has exhausted the remedies available in the
courts of the State, or that there is either an absence of
available State corrective process or the existence of cir-
cumstances rendering such process ineffective to protect the
rights of the applicant. An application may be denied on
the merits notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.
A State shall not be deemed to have waived the exhaustion
requirement, or be estopped from reliance upon the require-
ment unless through its counsel it waives the requirement
expressly.’’.
SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRIS-
ONERS FILING FOR COLLATERAL REMEDY.
Section 2255 of title 28, United States Code, is amend-
ed by striking the second paragraph and the penultimate
paragraph thereof, and by adding at the end the following
new paragraphs:
‘‘A two-year period of limitation shall apply to a mo-
tion under this section. The limitation period shall run
from the latest of the following times:
‘‘(1) The time at which the judgment of convic-
tion becomes final.
‘‘(2) The time at which the impediment to mak-
ing a motion created by governmental action in viola-
tion of the Constitution or laws of the United States
is removed, where the movant was prevented from
making a motion by such governmental action.
‘‘(3) The time at which the right asserted was
initially recognized by the Supreme Court, where the
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 discov-
ered through the exercise of reasonable diligence.’’.
Subtitle B—Special Procedures for
Collateral Proceedings in Cap-
ital Cases
SEC. 111. DEATH PENALTY LITIGATION PROCEDURES.
(a) IN GENERAL.—Title 28, United States Code, is
amended by inserting the following new chapter after chap-
ter 153:
‘‘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; succes-
sive 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.
‘‘§ 2256. Prisoners in State custody subject to capital
sentence; appointment of counsel; require-
ment of rule of court or statute; proce-
dures 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 provi-
sions 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 mechanism
for the appointment, compensation and payment of reason-
able litigation expenses of competent counsel in State
postconviction proceedings brought by indigent prisoners
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 purposes. 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 subsection
(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 rep-
resent the prisoner upon a finding that the prisoner is indi-
gent and accepted the offer or is unable competently to de-
cide 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.
‘‘(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 appointment is
made unless the prisoner and counsel expressly request con-
tinued representation.
‘‘(e) The ineffectiveness or incompetence of counsel dur-
ing State or Federal collateral postconviction proceedings
in a capital case shall not be a ground for relief in a pro-
ceeding arising under section 2254 of this chapter. This
limitation shall not preclude the appointment of different
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 ineffectiveness or incom-
petence of counsel in such proceedings.
‘‘§ 2257. Mandatory stay of execution; duration; limits
on stays of execution; successive petitions
‘‘(a) Upon the entry in the appropriate State court
of record of an order 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 invoked the
postconviction review procedures of this chapter and that
the scheduled execution is subject to stay.
‘‘(b) A stay of execution granted pursuant to subsection
(a) shall expire if—
‘‘(1) a State prisoner fails to file a habeas corpus
petition under section 2254 within the time required
in section 2258, or fails to make a timely application
for court of appeals review following the denial 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 con-
sideration of the case, the Supreme Court disposed of
it in a manner that left the capital sentence undis-
turbed; or
‘‘(3) before a court of competent jurisdiction, in
the presence of counsel and after having been advised
of the consequences of his decision, a State prisoner
under capital sentence waives the right to pursue ha-
beas corpus review under section 2254.
‘‘(c) If one of the conditions in subsection (b) has oc-
curred, no Federal court thereafter shall have the authority
to enter a stay of execution or grant relief in a capital case
unless—
‘‘(1) the basis for the stay and request for relief
is a claim not previously presented in the State or
Federal courts;
‘‘(2) the failure to raise the claim is (A) the re-
sult of State action in violation of the Constitution or
laws of the United States; (B) the result of the Su-
preme 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 suf-
ficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable fact
finder would have found the petitioner guilty of the
underlying offense.
‘‘(d) Notwithstanding any other provision of law, no
Federal district court or appellate judge shall have the au-
thority to enter a stay of execution, issue injunctive relief,
or grant any equitable or other relief in a capital case on
any successive habeas petition unless the court first deter-
mines the petition or other action does not constitute an
abuse of the writ. This determination shall be made only
by the district judge or appellate panel who adjudicated the
merits of the original habeas petition (or to the district
judge or appellate panel to which the case may have been
subsequently assigned as a result of the unavailability of
the original court or judges). In the Federal courts of ap-
peal, a stay may issue pursuant to the terms of this provi-
sion only when a majority of the original panel or majority
of the active judges determines the petition does not con-
stitute an abuse of the writ.
‘‘§ 2258. Filing of habeas corpus petition; time require-
ments; 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 review 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 filing
rules are met in a timely manner, this period shall
run continuously from the date that the State pris-
oner 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 peti-
tion for certiorari before the Supreme Court except as
provided in paragraph (1); and
‘‘(3) during an additional period not to exceed
sixty days, if (A) a motion for an extension of time
is filed in the Federal district court that would have
proper jurisdiction over the case upon the filing of a
habeas corpus petition under section 2254; and (B) a
showing of good cause is made for the failure to file
the habeas corpus petition within the time period es-
tablished by this section.
‘‘§ 2259. Scope of Federal review; district court adju-
dications
‘‘(a) Whenever a State prisoner under capital sentence
files a petition for habeas corpus relief to which this chapter
applies, the district court shall only consider a claim or
claims that have been raised and decided on the merits in
the State courts, unless the failure to raise the claim prop-
erly is—
‘‘(1) the result of State action in violation of the
Constitution or laws of the United States;
‘‘(2) the result of the Supreme Court recognition
of a new Federal right that is retroactively applica-
ble; or
‘‘(3) 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.
‘‘(b) Following review subject to the constraints set
forth in subsection (a) and section 2254(d) of this title, the
court shall rule on the claims properly before it.
‘‘§ 2260. Certificate of probable cause inapplicable
‘‘The requirement of a certificate of probable cause in
order to appeal from the district court to the court of ap-
peals does not apply to habeas corpus cases subject to the
provisions of this chapter except when a second or successive
petition is filed.
‘‘§ 2261. Application to State unitary review procedure
‘‘(a) For purposes of this section, a ‘unitary review’
procedure means a State procedure that authorizes a person
under sentence of death to raise, in the course of direct re-
view of the judgment, such claims as could be raised on
collateral attack. The provisions of this chapter shall apply,
as provided in this section, in relation to a State unitary
review procedure if the State establishes by rule of its court
of last resort or by statute a mechanism for the appoint-
ment, compensation and payment of reasonable litigation
expenses of competent counsel in the unitary review pro-
ceedings, including expenses relating to the litigation of col-
lateral claims in the proceedings. The rule of court or stat-
ute must provide standards of competency for the appoint-
ment of such counsel.
‘‘(b) A unitary review procedure, to qualify under this
section, must include an offer of counsel following trial for
the purpose of representation on unitary review, and entry
of an order, as provided in section 2256(c), concerning ap-
pointment of counsel or waiver or denial of appointment
of counsel for that purpose. No counsel appointed to rep-
resent the prisoner in the unitary review proceedings shall
have previously represented the prisoner at trial in the case
for which the appointment is made unless the prisoner and
counsel expressly request continued representation.
‘‘(c) Sections 2257, 2258, 2259, 2260, and 2262 shall
apply in relation to cases involving a sentence of death from
any State having a unitary review procedure that qualifies
under this section. References to State ‘post-conviction re-
view’ and ‘direct review’ in those sections shall be under-
stood as referring to unitary review under the State proce-
dure. The references in sections 2257(a) and 2258 to ‘an
order under section 2256(c)’ shall be understood as referring
to the post-trial order under subsection (b) concerning rep-
resentation in the unitary review proceedings, but if a tran-
script of the trial proceedings is unavailable at the time
of the filing of such an order in the appropriate State court,
then the start of the one hundred and eighty day limitation
period under section 2258 shall be deferred until a tran-
script is made available to the prisoner or his counsel.
‘‘§ 2262. Limitation periods for determining petitions
‘‘(a)(1) A Federal district court shall determine such
a petition or motion within 60 days of any argument heard
on an evidentiary hearing, or where no evidentiary hearing
is held, within 60 days of any final argument heard in
the case.
‘‘(2)(A) The court of appeals shall determine any ap-
peal relating to such a petition or motion within 90 days
after the filing of any reply brief or within 90 days after
such reply brief would be due. For purposes of this provi-
sion, any reply brief shall be due within 14 days of the
opposition brief.
‘‘(B) The court of appeals shall decide any petition
for rehearing and or request by an appropriate judge for
rehearing en banc within 20 days of the filing of such a
petition or request unless a responsive pleading is required
in which case the court of appeals shall decide the applica-
tion within 20 days of the filing of the responsive pleading.
If en banc consideration is granted, the en banc court shall
determine the appeal within 90 days of the decision to grant
such consideration.
‘‘(3) The time limitations contained in paragraphs (1)
and (2) may be extended only once for 20 days, upon an
express good cause finding by the court that the interests
of justice warrant such a one-time extension. The specific
grounds for the good cause finding shall be set forth in writ-
ing in any extension order of the court.
‘‘(b) The time limitations under subsection (a) shall
apply to an initial petition or motion, and to any second
or successive petition or motion. The same limitations shall
also apply to the re-determination of a petition or motion
or related appeal following a remand by the court of ap-
peals or the Supreme Court for further proceedings, and in
such a case the limitation period shall run from the date
of the remand.
‘‘(c) The time limitations under this section shall not
be construed to entitle a petitioner or movant to a stay of
execution, to which the petitioner or movant would other-
wise not be entitled, for the purpose of litigating any peti-
tion, motion, or appeal.
‘‘(d) The failure of a court to meet or comply with
the time limitations under this section shall not be a ground
for granting relief from a judgment of conviction or sen-
tence. The State or Government may enforce the time limi-
tations under this section by applying to the court of ap-
peals or the Supreme Court for a writ of mandamus.
‘‘(e) The Administrative Office of United States Courts
shall report annually to Congress on the compliance by the
courts with the time limits established in this section.
‘‘(f) The adjudication of any petition under section
2254 of this title that is subject to this chapter, and the
adjudication of any motion under section 2255 of this title
by a person under sentence of death, shall be given priority
by the district court and by the court of appeals over all
noncapital matters.
‘‘§ 2263. Rule of construction
‘‘This chapter shall be construed to promote the expedi-
tious conduct and conclusion of State and Federal court
review in capital cases.’’.
(b) CLERICAL AMENDMENT.—The table of chapters at
the beginning of part VI of title 28, United States Code,
is amended by inserting after the item relating to chapter
153 the following new item:
‘‘154. Special habeas corpus procedures in capital cases 2256’’.
Subtitle C—Funding for Litigation
of Federal Habeas Corpus Peti-
tions in Capital Cases
SEC. 121. FUNDING FOR DEATH PENALTY PROSECUTIONS.
(a) IN GENERAL.—Part E of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711
et seq.) is amended by adding at the end the following new
section:
‘‘FUNDING FOR LITIGATION OF FEDERAL HABEAS CORPUS
PETITIONS IN CAPITAL CASES
‘‘SEC. 523. Notwithstanding any other provision of
this subpart, the Director shall provide grants to the States,
from the funding allocated pursuant to section 511, for the
purpose of supporting litigation pertaining to Federal ha-
beas corpus petitions in capital cases. The total funding
available for such grants within any fiscal year shall be
equal to the funding provided to capital resource centers,
pursuant to Federal appropriation, in the same fiscal
year.’’.
(b) CLERICAL AMENDMENT.—The table of contents at
the beginning of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 is amended by inserting after the
item relating to section 522 the following new item:
‘‘Sec. 523. Funding for litigation of Federal habeas corpus petitions in capital
cases.’’.
TITLE II—FEDERAL DEATH
PENALTY PROCEDURES REFORM
SEC. 201. FEDERAL DEATH PENALTY PROCEDURES RE-
FORM.
(a) IN GENERAL.—Subsection (e) of section 3593 of
title 18, United States Code, is amended by striking ‘‘shall
consider’’ and all that follows through the end of such sub-
section and inserting the following: ‘‘shall then consider
whether the aggravating factor or factors found to exist out-
weigh any mitigating factors. The jury, or if there is no
jury, the court shall recommend a sentence of death if it
unanimously finds at least one aggravating factor and no
mitigating factor or if it finds one or more aggravating
factors which outweigh any mitigating factors. In any other
case, it shall not recommend a sentence of death. The jury
shall be instructed that it must avoid any influence of sym-
pathy, sentiment, passion, prejudice, or other arbitrary fac-
tors in its decision, and should make such a recommenda-
tion as the information warrants. The jury shall be in-
structed that its recommendation concerning a sentence of
death is to be based on the aggravating factor or factors
and any mitigating factors which have been found, but that
the final decision concerning the balance of aggravating and
mitigating factors is a matter for the jury’s judgment.’’.
(b) CONFORMING AMENDMENT.—Section 3594 of title
18, United States Code, is amended by striking ‘‘or life im-
prisonment without possibility of release’’.
HR 729 RH——2
HR 729 RH——3