139
(1) FOREIGN STATE.—Section 1610(a) of title
28, United States Code, is amended—
(A) by striking the period at the end of
paragraph (6) and inserting ‘‘, or’’; and
(B) by adding at the end the following new
paragraph:
‘‘(7) the judgment relates to a claim for which
the foreign state is not immune under section
1605(a)(7), regardless of whether the property is or
was involved with the act upon which the claim is
based.’’.
(2) AGENCY
OR
INSTRUMENTALITY.—Section
1610(b)(2) of such title is amended—
(A) by striking ‘‘or (5)’’ and inserting
‘‘(5), or (7)’’; and
(B) by striking ‘‘used for the activity’’ and
inserting ‘‘involved in the act’’.
(c) APPLICABILITY.—The amendments made by this
title shall apply to any cause of action arising before, on,
or after the date of the enactment of this Act.
140
SEC. 804. STUDY OF PUBLICLY AVAILABLE INSTRUCTIONAL
MATERIAL ON THE MAKING OF BOMBS, DE-
STRUCTIVE 
DEVICES, 
AND 
WEAPONS 
OF
MASS DESTRUCTION.
(a) STUDY.—The Attorney General, in consultation
with such other officials and individuals as the Attorney
General deems appropriate, shall conduct a study concern-
ing—
(1) the extent to which there are available to
the public material in any medium (including print,
electronic, or film) that instructs how to make
bombs, other destructive devices, and weapons of
mass destruction;
(2) the extent to which information gained from
such material has been used in incidents of domestic
and international terrorism;
(3) the likelihood that such information may be
used in future incidents of terrorism; and
(4) the application of existing Federal laws to
such material, the need and utility, if any, for addi-
tional laws, and an assessment of the extent to
which the First Amendment protects such material
and its private and commercial distribution.
(b) REPORT.—Not later than 180 days after the date
of the enactment of this Act, the Attorney General shall
submit to the Congress a report that contains the results
141
of the study required by this section. The Attorney Gen-
eral shall make the report available to the public.
SEC. 805. COMPILATION OF STATISTICS RELATING TO IN-
TIMIDATION OF GOVERNMENT EMPLOYEES.
(a) FINDINGS.—Congress finds that—
(1) threats of violence and acts of violence are
mounting against Federal, State, and local govern-
ment employees and their families in attempts to
stop public servants from performing their lawful
duties;
(2) these acts are a danger to our constitutional
form of government; and
(3) more information is needed as to the extent
of the danger and its nature so that steps can be
taken to protect public servants at all levels of gov-
ernment in the performance of their duties.
(b) STATISTICS.—The Attorney General shall acquire
data, for the calendar year 1990 and each succeeding cal-
endar year about crimes and incidents of threats of vio-
lence and acts of violence against Federal, State, and local
government employees in performance of their lawful du-
ties. Such data shall include—
(1) in the case of crimes against such employ-
ees, the nature of the crime; and
142
(2) in the case of incidents of threats of vio-
lence and acts of violence, including verbal and im-
plicit threats against such employees, whether or not
criminally punishable, which deter the employees
from the performance of their jobs.
(c) GUIDELINES.—The Attorney General shall estab-
lish guidelines for the collection of such data, including
what constitutes sufficient evidence of noncriminal inci-
dents required to be reported.
(d) ANNUAL PUBLISHING.—The Attorney General
shall publish an annual summary of the data acquired
under this section. Otherwise such data shall be used only
for research and statistical purposes.
(e) EXEMPTION.—The United States Secret Service
is not required to participate in any statistical reporting
activity under this section with respect to any direct or
indirect threats made against any individual for whom the
United States Secret Service is authorized to provide pro-
tection.
SEC. 806. VICTIM RESTITUTION ACT OF 1995.
(a) ORDER OF RESTITUTION.—Section 3663 of title
18, United States Code, is amended—
(1) in subsection (a)—
(A) in paragraph (1)—
143
(i) by striking ‘‘may order, in addition
to or, in the case of a misdemeanor, in lieu
of any other penalty authorized by law’’
and inserting ‘‘shall order’’; and
(ii) by adding at the end the follow-
ing: ‘‘The requirement of this paragraph
does not affect the power of the court to
impose any other penalty authorized by
law. In the case of a misdemeanor, the
court may impose restitution in lieu of any
other penalty authorized by law.’’;
(B) by adding at the end the following:
‘‘(4) In addition to ordering restitution to the victim
of the offense of which a defendant is convicted, a court
may order restitution to any person who, as shown by a
preponderance of evidence, was harmed physically, emo-
tionally, or pecuniarily, by unlawful conduct of the defend-
ant during—
‘‘(A) the criminal episode during which the of-
fense occurred; or
‘‘(B) the course of a scheme, conspiracy, or pat-
tern of unlawful activity related to the offense.’’;
(2) in subsection (b)(1)(B) by striking ‘‘imprac-
tical’’ and inserting ‘‘impracticable’’;
144
(3) in subsection (b)(2) by inserting ‘‘emotional
or’’ after ‘‘resulting in’’;
(4) in subsection (b)—
(A) by striking ‘‘and’’ at the end of para-
graph (4);
(B) by redesignating paragraph (5) as
paragraph (6); and
(C) by inserting after paragraph (4) the
following new paragraph:
‘‘(5) in any case, reimburse the victim for lost
income and necessary child care, transportation, and
other expenses related to participation in the inves-
tigation or prosecution of the offense or attendance
at proceedings related to the offense; and’’;
(5) in subsection (c) by striking ‘‘If the court
decides to order restitution under this section, the’’
and inserting ‘‘The’’;
(6) by striking subsections (d), (e), (f), (g), and
(h);
(7) by redesignating subsection (i) as subsection
(m); and
(8) by inserting after subsection (c) the follow-
ing:
145
‘‘(d)(1) The court shall order restitution to a victim
in the full amount of the victim’s losses as determined by
the court and without consideration of—
‘‘(A) the economic circumstances of the of-
fender; or
‘‘(B) the fact that a victim has received or is
entitled to receive compensation with respect to a
loss from insurance or any other source.
‘‘(2) Upon determination of the amount of restitution
owed to each victim, the court shall specify in the restitu-
tion order the manner in which and the schedule according
to which the restitution is to be paid, in consideration of—
‘‘(A) the financial resources and other assets of
the offender;
‘‘(B) projected earnings and other income of
the offender; and
‘‘(C) any financial obligations of the offender,
including obligations to dependents.
‘‘(3) A restitution order may direct the offender to
make a single, lump-sum payment, partial payment at
specified intervals, or such in-kind payments as may be
agreeable to the victim and the offender. A restitution
order shall direct the offender to give appropriate notice
to victims and other persons in cases where there are mul-
tiple victims or other persons who may receive restitution,
146
and where the identity of such victims and other persons
can be reasonably determined.
‘‘(4) An in-kind payment described in paragraph (3)
may be in the form of—
‘‘(A) return of property;
‘‘(B) replacement of property; or
‘‘(C) services rendered to the victim or to a per-
son or organization other than the victim.
‘‘(e) When the court finds that more than 1 offender
has contributed to the loss of a victim, the court may make
each offender liable for payment of the full amount of res-
titution or may apportion liability among the offenders to
reflect the level of contribution and economic cir-
cumstances of each offender.
‘‘(f) When the court finds that more than 1 victim
has sustained a loss requiring restitution by an offender,
the court shall order full restitution to each victim but
may provide for different payment schedules to reflect the
economic circumstances of each victim.
‘‘(g)(1) If the victim has received or is entitled to re-
ceive compensation with respect to a loss from insurance
or any other source, the court shall order that restitution
be paid to the person who provided or is obligated to pro-
vide the compensation, but the restitution order shall pro-
vide that all restitution to victims required by the order
147
be paid to the victims before any restitution is paid to
such a provider of compensation.
‘‘(2) The issuance of a restitution order shall not af-
fect the entitlement of a victim to receive compensation
with respect to a loss from insurance or any other source
until the payments actually received by the victim under
the restitution order fully compensate the victim for the
loss, at which time a person that has provided compensa-
tion to the victim shall be entitled to receive any payments
remaining to be paid under the restitution order.
‘‘(3) Any amount paid to a victim under an order of
restitution shall be set off against any amount later recov-
ered as compensatory damages by the victim in—
‘‘(A) any Federal civil proceeding; and
‘‘(B) any State civil proceeding, to the extent
provided by the law of the State.
‘‘(h) A restitution order shall provide that—
‘‘(1) all fines, penalties, costs, restitution pay-
ments and other forms of transfers of money or
property made pursuant to the sentence of the court
shall be made by the offender to an entity des-
ignated by the Director of the Administrative Office
of the United States Courts for accounting and pay-
ment by the entity in accordance with this sub-
section;
148
‘‘(2) the entity designated by the Director of
the Administrative Office of the United States
Courts shall—
‘‘(A) log all transfers in a manner that
tracks the offender’s obligations and the cur-
rent status in meeting those obligations, unless,
after efforts have been made to enforce the res-
titution order and it appears that compliance
cannot be obtained, the court determines that
continued recordkeeping under this subpara-
graph would not be useful; and
‘‘(B) notify the court and the interested
parties when an offender is 30 days in arrears
in meeting those obligations; and
‘‘(3) the offender shall advise the entity des-
ignated by the Director of the Administrative Office
of the United States Courts of any change in the of-
fender’s address during the term of the restitution
order.
‘‘(i) A restitution order shall constitute a lien against
all property of the offender and may be recorded in any
Federal or State office for the recording of liens against
real or personal property.
‘‘(j) Compliance with the schedule of payment and
other terms of a restitution order shall be a condition of
149
any probation, parole, or other form of release of an of-
fender. If a defendant fails to comply with a restitution
order, the court may revoke probation or a term of super-
vised release, modify the term or conditions of probation
or a term of supervised release, hold the defendant in con-
tempt of court, enter a restraining order or injunction,
order the sale of property of the defendant, accept a per-
formance bond, or take any other action necessary to ob-
tain compliance with the restitution order. In determining
what action to take, the court shall consider the defend-
ant’s employment status, earning ability, financial re-
sources, the willfulness in failing to comply with the res-
titution order, and any other circumstances that may have
a bearing on the defendant’s ability to comply with the
restitution order.
‘‘(k) An order of restitution may be enforced—
‘‘(1) by the United States—
‘‘(A) in the manner provided for the collec-
tion and payment of fines in subchapter B of
chapter 229 of this title; or
‘‘(B) in the same manner as a judgment in
a civil action; and
‘‘(2) by a victim named in the order to receive
the restitution, in the same manner as a judgment
in a civil action.
150
‘‘(l) A victim or the offender may petition the court
at any time to modify a restitution order as appropriate
in view of a change in the economic circumstances of the
offender.’’.
(b) PROCEDURE FOR ISSUING ORDER OF RESTITU-
TION.—Section 3664 of title 18, United States Code, is
amended—
(1) by striking subsection (a);
(2) by redesignating subsections (b), (c), (d),
and (e) as subsections (a), (b), (c), and (d);
(3) by amending subsection (a), as redesignated
by paragraph (2), to read as follows:
‘‘(a) The court may order the probation service of the
court to obtain information pertaining to the amount of
loss sustained by any victim as a result of the offense,
the financial resources of the defendant, the financial
needs and earning ability of the defendant and the defend-
ant’s dependents, and such other factors as the court
deems appropriate. The probation service of the court
shall include the information collected in the report of
presentence investigation or in a separate report, as the
court directs.’’; and
(4) by adding at the end thereof the following
new subsection:
151
‘‘(e) The court may refer any issue arising in connec-
tion with a proposed order of restitution to a magistrate
or special master for proposed findings of fact and rec-
ommendations as to disposition, subject to a de novo de-
termination of the issue by the court.’’.
TITLE IX—HABEAS CORPUS
REFORM
SEC. 901. FILING DEADLINES.
Section 2244 of title 28, United States Code, is
amended by adding at the end the following new sub-
section:
‘‘(d)(1) A 1-year period of limitation shall apply to
an application for a write of habeas corpus by a person
in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
‘‘(A) the date on which the judgment became
final by the conclusion of direct review or the expira-
tion of the time for seeking such review;
‘‘(B) the date on 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, if the applicant was prevented from filing by
such State action;
‘‘(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
152
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
‘‘(D) the date on which the factual predicate of
the claim or claims presented could have been dis-
covered through the exercise of due diligence.
‘‘(2) The time during which a properly filed applica-
tion for State post-conviction or other collateral review
with respect to the pertinent judgment or claim shall not
be counted toward any period of limitation under this sub-
section.’’.
SEC. 902. APPEAL.
Section 2253 of title 28, United States Code, is
amended to read as follows:
‘‘§ 2253. Appeal
‘‘(a) In a habeas corpus proceeding or a proceeding
under section 2255 before a district judge, the final order
shall be subject to review, on appeal, by the court of ap-
peals for the circuit in which the proceeding is held.
‘‘(b) There shall be no right of appeal from a final
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 such person’s de-
tention pending removal proceedings.
153
‘‘(c)(1) Unless a circuit justice or judge issues a cer-
tificate of appealability, an appeal may not be taken to
the court of appeals from—
‘‘(A) the final order in a habeas corpus proceed-
ing in which the detention complained of arises out
of process issued by a State court; or
‘‘(B) the final order in a proceeding under sec-
tion 2255.
‘‘(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a substantial
showing of the denial of a constitutional right.
‘‘(3) The certificate of appealability under paragraph
(1) shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).’’.
SEC. 903. AMENDMENT OF FEDERAL RULES OF APPELLATE
PROCEDURE.
Rule 22 of the Federal Rules of Appellate Procedure
is amended to read as follows:
‘‘Rule 22. Habeas corpus and section 2255 proceed-
ings
‘‘(a) APPLICATION FOR THE ORIGINAL WRIT.—An
application for a writ of habeas corpus shall be made to
the appropriate district court. If application is made to
a circuit judge, the application shall be transferred to the
appropriate district court. If an application is made to or
154
transferred to the district court and denied, renewal of the
application before a circuit judge shall not be permitted.
The applicant may, pursuant to section 2253 of title 28,
United States Code, appeal to the appropriate court of ap-
peals from the order of the district court denying the writ.
‘‘(b) CERTIFICATE OF APPEALABILITY.—In a habeas
corpus proceeding in which the detention complained of
arises out of process issued by a State court, an appeal
by the applicant for the writ may not proceed unless a
district or a circuit judge issues a certificate of
appealability pursuant to section 2253(c) of title 28,
United States Code. If an appeal is taken by the applicant,
the district judge who rendered the judgment shall either
issue a certificate of appealability or state the reasons why
such a certificate should not issue. The certificate or the
statement shall be forwarded to the court of appeals with
the notice of appeal and the file of the proceedings in the
district court. If the district judge has denied the certifi-
cate, the applicant for the writ may then request issuance
of the certificate by a circuit judge. If such a request is
addressed to the court of appeals, it shall be deemed ad-
dressed 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 certificate is filed, the notice
of appeal shall be deemed to constitute a request ad-
155
dressed to the judges of the court of appeals. If an appeal
is taken by a State or its representative, a certificate of
appealability is not required.’’.
SEC. 904. SECTION 2254 AMENDMENTS.
Section 2254 of title 28, United States Code, is
amended—
(1) by amending subsection (b) to read as fol-
lows:
‘‘(b)(1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears
that—
‘‘(A) the applicant has exhausted the remedies
available in the courts of the State; or
‘‘(B)(i) there is an absence of available State
corrective process; or
‘‘(ii) circumstances exist that render such proc-
ess ineffective to protect the rights of the applicant.
‘‘(2) An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts
of the State.
‘‘(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon
156
the requirement unless the State, through counsel, ex-
pressly waives the requirement.’’;
(2) by redesignating subsections (d), (e), and
(f) as subsections (e), (f), and (g), respectively;
(3) by inserting after subsection (c) the follow-
ing new subsection:
‘‘(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
‘‘(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Su-
preme Court of the United States; or
‘‘(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceed-
ing.’’;
(4) by amending subsection (e), as redesignated
by paragraph (2), to read as follows:
‘‘(e)(1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody pursu-
ant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed
157
to be correct. The applicant shall have the burden of re-
butting the presumption of correctness by clear and con-
vincing evidence.
‘‘(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows that—
‘‘(A) the claim relies on—
‘‘(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavail-
able; or
‘‘(ii) a factual predicate that could not
have been previously discovered through the ex-
ercise of due diligence; and
‘‘(B) the facts underlying the claim would be
sufficient to establish by clear and convincing evi-
dence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of
the underlying offense.’’; and
(5) by adding at the end the following new sub-
sections:
‘‘(h) Except as provided in section 408 of the Con-
trolled Substances Act, in all proceedings brought under
this section, and any subsequent proceedings on review,
158
the court may appoint counsel for an applicant who is or
becomes financially unable to afford counsel, except as
provided by a rule promulgated by the Supreme Court
pursuant to statutory authority. Appointment of counsel
under this section shall be governed by section 3006A of
title 18.
‘‘(i) The ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction proceed-
ings shall not be a ground for relief in a proceeding arising
under section 2254.’’.
SEC. 905. SECTION 2255 AMENDMENTS.
Section 2255 of title 28, United States Code, is
amended—
(1) by striking the second and fifth undesig-
nated paragraphs; and
(2) by adding at the end the following new un-
designated paragraphs:
‘‘A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from
the latest of—
‘‘(1) the date on which the judgment of convic-
tion becomes final;
‘‘(2) the date on which the impediment to mak-
ing a motion created by governmental action in vio-
lation of the Constitution or laws of the United
159
States is removed, if the movant was prevented from
making a motion by such governmental action;
‘‘(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
‘‘(4) the date on which the facts supporting the
claim or claims presented could have been discovered
through the exercise of due diligence.
‘‘Except as provided in section 408 of the Controlled
Substances Act, in all proceedings brought under this sec-
tion, and any subsequent proceedings on review, the court
may appoint counsel for a movant who is or becomes fi-
nancially unable to afford counsel shall be in the discretion
of the court, except as provided by a rule promulgated by
the Supreme Court pursuant to statutory authority. Ap-
pointment of counsel under this section shall be governed
by section 3006A of title 18.
‘‘A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain—
‘‘(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evi-
160
dence that no reasonable factfinder would have
found the movant guilty of the offense; or
‘‘(2) a new rule of constitutional law, made ret-
roactive to cases on collateral review by the Supreme
Court, that was previously unavailable.’’.
SEC. 906. LIMITS ON SECOND OR SUCCESSIVE APPLICA-
TIONS.
(a) 
CONFORMING
AMENDMENT
TO
SECTION
2244(a).—Section 2244(a) of title 28, United States
Code, is amended by striking ‘‘and the petition’’ and all
that follows through ‘‘by such inquiry.’’ and inserting ‘‘,
except as provided in section 2255.’’.
(b) LIMITS ON SECOND OR SUCCESSIVE APPLICA-
TIONS.—Section 2244(b) of title 28, United States Code,
is amended to read as follows:
‘‘(b)(1) A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
‘‘(2) A claim presented in a second or successive ha-
beas corpus application under section 2254 that was not
presented in a prior application shall be dismissed un-
less—
‘‘(A) the applicant shows that the claim relies
on a new rule of constitutional law, made retroactive
161
to cases on collateral review by the Supreme Court,
that was previously unavailable; or
‘‘(B)(i) the factual predicate for the claim could
not have been discovered previously through the ex-
ercise of due diligence; and
‘‘(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evi-
dence that, but for constitutional error, no reason-
able factfinder would have found the applicant guilty
of the underlying offense.
‘‘(3)(A) Before a second or successive application per-
mitted by this section is filed in the district court, the ap-
plicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the ap-
plication.
‘‘(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or suc-
cessive application shall be determined by a three-judge
panel of the court of appeals.
‘‘(C) The court of appeals may authorize the filing
of a second or successive application only if it determines
that the application makes a prima facie showing that the
application satisfies the requirements of this subsection.
162
‘‘(D) The court of appeals shall grant or deny the
authorization to file a second or successive application not
later than 30 days after the filing of the motion.
‘‘(E) The grant or denial of an authorization by a
court of appeals to file a second or successive application
shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.
‘‘(4) A district court shall dismiss any claim pre-
sented in a second or successive application that the court
of appeals has authorized to be filed unless the applicant
shows that the claim satisfies the requirements of this sec-
tion.’’.
SEC. 907. DEATH PENALTY LITIGATION PROCEDURES.
(a) ADDITION OF CHAPTER TO TITLE 28, UNITED
STATES CODE.—Title 28, United States Code, is amended
by inserting after chapter 153 the following new chapter:
‘‘CHAPTER 154—SPECIAL HABEAS CORPUS
PROCEDURES IN CAPITAL CASES
‘‘Sec.
‘‘2261. Prisoners in State custody subject to capital sentence; appointment of
counsel; requirement of rule of court or statute; procedures for
appointment.
‘‘2262. Mandatory stay of execution; duration; limits on stays of execution; suc-
cessive petitions.
‘‘2263. Filing of habeas corpus application; time requirements; tolling rules.
‘‘2264. Scope of Federal review; district court adjudications.
‘‘2265. Application to State unitary review procedure.
‘‘2266. Limitation periods for determining applications and motions.
163
‘‘§ 2261. 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 statute, rule of its court of last resort, or by another
agency authorized by State law, a mechanism for the ap-
pointment, compensation, and payment of reasonable liti-
gation expenses of competent counsel in State post-convic-
tion proceedings brought by indigent prisoners whose cap-
ital convictions and sentences have been upheld on direct
appeal to the court of last resort in the State or have oth-
erwise 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 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 counsels to rep-
resent the prisoner upon a finding that the prisoner
164
is indigent and accepted the offer or is unable com-
petently 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 con-
sequences; 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 appoint-
ment is made unless the prisoner and counsel expressly
request continued representation.
‘‘(e) The ineffectiveness or incompetence of counsel
during State or Federal post-conviction proceedings in a
capital case shall not be a ground for relief in a proceeding
arising under section 2254. This limitation shall not pre-
clude 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 post-conviction proceedings on the
basis of the ineffectiveness or incompetence of counsel in
such proceedings.
165
‘‘§ 2262. 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 2261(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 shall recite that the State has in-
voked the post-conviction 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 application under section 2254 within the time
required in section 2263;
‘‘(2) before a court of competent jurisdiction, in
the presence of counsel, unless the prisoner has com-
petently and knowingly waived such counsel, and
after having been advised of the consequences, a
State prisoner under capital sentence waives the
right to pursue habeas corpus review under section
2254; or
‘‘(3) a State prisoner files a habeas corpus peti-
tion under section 2254 within the time required by
section 2263 and fails to make a substantial showing
167
‘‘(2) from the date on which the first petition
for post-conviction review or other collateral relief is
filed until the final State court disposition of such
petition; and
‘‘(3) during an additional period not to exceed
30 days, if—
‘‘(A) a motion for an extension of time is
filed in the Federal district court that would
have jurisdiction over the case upon the filing
of a habeas corpus application under section
2254; and
‘‘(B) a showing of good cause is made for
the failure to file the habeas corpus application
within the time period established by this sec-
tion.
‘‘§ 2264. Scope of Federal review; district court adju-
dications
‘‘(a) Whenever a State prisoner under capital sen-
tence 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 properly is—
‘‘(1) the result of State action in violation of
the Constitution or laws of the United States;
168
‘‘(2) the result of the Supreme Court recogni-
tion of a new Federal right that is made retro-
actively applicable; or
‘‘(3) based on a factual predicate that could not
have been discovered through the exercise of due
diligence in time to present the claim for State or
Federal post-conviction review.
‘‘(b) Following review subject to subsections (a), (d),
and (e) of section 2254, the court shall rule on the claims
properly before it.
‘‘§ 2265. Application to State unitary review proce-
dure
‘‘(a) For purposes of this section, a ‘unitary review’
procedure means a State procedure that authorizes a per-
son under sentence of death to raise, in the course of di-
rect review of the judgment, such claims as could be raised
on collateral attack. This chapter shall apply, as provided
in this section, in relation to a State unitary review proce-
dure if the State establishes by rule of its court of last
resort or by statute a mechanism for the appointment,
compensation, and payment of reasonable litigation ex-
penses of competent counsel in the unitary review proceed-
ings, including expenses relating to the litigation of collat-
eral claims in the proceedings. The rule of court or statute
169
must provide standards of competency for the appoint-
ment of such counsel.
‘‘(b) To qualify under this section, a unitary review
procedure 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 2261(c), concern-
ing appointment of counsel or waiver or denial of appoint-
ment of counsel for that purpose. No counsel appointed
to represent 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 represen-
tation.
‘‘(c) Sections 2262, 2263, 2264, and 2266 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 such sections shall be under-
stood as referring to unitary review under the State proce-
dure. The reference in section 2262(a) to ‘an order under
section 2261(c)’ shall be understood as referring to the
post-trial order under subsection (b) concerning represen-
tation 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
170
court, then the start of the 180-day limitation period
under section 2263 shall be deferred until a transcript is
made available to the prisoner or counsel of the prisoner.
‘‘§ 2266. Limitation periods for determining applica-
tions and motions
‘‘(a) The adjudication of any application under sec-
tion 2254 that is subject to this chapter, and the adjudica-
tion of any motion under section 2255 by a person under
sentence of death, shall be given priority by the district
court and by the court of appeals over all noncapital mat-
ters.
‘‘(b)(1)(A) A district court shall render a final deter-
mination and enter a final judgment on any application
for a writ of habeas corpus brought under this chapter
in a capital case not later than 180 days after the date
on which the application is filed.
‘‘(B) A district court shall afford the parties at least
120 days in which to complete all actions, including the
preparation of all pleadings and briefs, and if necessary,
a hearing, prior to the submission of the case for decision.
‘‘(C)(i) A district court may delay for not more than
one additional 30-day period beyond the period specified
in subparagraph (A), the rendering of a determination of
an application for a writ of habeas corpus if the court is-
sues a written order making a finding, and stating the
171
reasons for the finding, that the ends of justice that would
be served by allowing the delay outweigh the best interests
of the public and the applicant in a speedy disposition of
the application.
‘‘(ii) The factors, among others, that a court shall
consider in determining whether a delay in the disposition
of an application is warranted are as follows:
‘‘(I) Whether the failure to allow the delay
would be likely to result in a miscarriage of justice.
‘‘(II) Whether the case is so unusual or so com-
plex, due to the number of defendants, the nature of
the prosecution, or the existence of novel questions
of fact or law, that it is unreasonable to expect ade-
quate briefing within the time limitations established
by subparagraph (A).
‘‘(III) Whether the failure to allow a delay in
a case, that, taken as a whole, is not so unusual or
so complex as described in subclause (II), but would
otherwise deny the applicant reasonable time to ob-
tain counsel, would unreasonably deny the applicant
or the government continuity of counsel, or would
deny counsel for the applicant or the government the
reasonable time necessary for effective preparation,
taking into account the exercise of due diligence.
172
‘‘(iii) No delay in disposition shall be permissible be-
cause of general congestion of the court’s calendar.
‘‘(iv) The court shall transmit a copy of any order
issued under clause (i) to the Director of the Administra-
tive Office of the United States Courts for inclusion in
the report under paragraph (5).
‘‘(2) The time limitations under paragraph (1) shall
apply to—
‘‘(A) an initial application for a writ of habeas
corpus;
‘‘(B) any second or successive application for a
writ of habeas corpus; and
‘‘(C) any redetermination of an application for
a writ of habeas corpus following a remand by the
court of appeals or the Supreme Court for further
proceedings, in which case the limitation period shall
run from the date the remand is ordered.
‘‘(3)(A) The time limitations under this section shall
not be construed to entitle an applicant to a stay of execu-
tion, to which the applicant would otherwise not be enti-
tled, for the purpose of litigating any application or
appeal.
‘‘(B) No amendment to an application for a writ of
habeas corpus under this chapter shall be permitted after
173
the filing of the answer to the application, except on the
grounds specified in section 2244(b).
‘‘(4)(A) The failure of a court to meet or comply with
a time limitation under this section shall not be a ground
for granting relief from a judgment of conviction or sen-
tence.
‘‘(B) The State may enforce a time limitation under
this section by petitioning for a writ of mandamus to the
court of appeals. The court of appeals shall act on the
petition for a writ or mandamus not later than 30 days
after the filing of the petition.
‘‘(5)(A) The Administrative Office of United States
Courts shall submit to Congress an annual report on the
compliance by the district courts with the time limitations
under this section.
‘‘(B) The report described in subparagraph (A) shall
include copies of the orders submitted by the district
courts under paragraph (1)(B)(iv).
‘‘(c)(1)(A) A court of appeals shall hear and render
a final determination of any appeal of an order granting
or denying, in whole or in part, an application brought
under this chapter in a capital case not later than 120
days after the date on which the reply brief is filed, or
if no reply brief is filed, not later than 120 days after
the date on which the answering brief is filed.
174
‘‘(B)(i) A court of appeals shall decide whether to
grant a petition for rehearing or other request for rehear-
ing en banc not later than 30 days after the date on which
the petition for rehearing is filed unless a responsive
pleading is required, in which case the court shall decide
whether to grant the petition not later than 30 days after
the date on which the responsive pleading is filed.
‘‘(ii) If a petition for rehearing or rehearing en banc
is granted, the court of appeals shall hear and render a
final determination of the appeal not later than 120 days
after the date on which the order granting rehearing or
rehearing en banc is entered.
‘‘(2) The time limitations under paragraph (1) shall
apply to—
‘‘(A) an initial application for a writ of habeas
corpus;
‘‘(B) any second or successive application for a
writ of habeas corpus; and
‘‘(C) any redetermination of an application for
a writ of habeas corpus or related appeal following
a remand by the court of appeals en banc or the Su-
preme Court for further proceedings, in which case
the limitation period shall run from the date the re-
mand is ordered.
175
‘‘(3) The time limitations under this section shall not
be construed to entitle an applicant to a stay of execution,
to which the applicant would otherwise not be entitled, for
the purpose of litigating any application or appeal.
‘‘(4)(A) The failure of a court to meet or comply with
a time limitation under this section shall not be a ground
for granting relief from a judgment of conviction or sen-
tence.
‘‘(B) The State may enforce a time limitation under
this section by applying for a writ of mandamus to the
Supreme Court.
‘‘(5) The Administrative Office of United States
Courts shall submit to Congress an annual report on the
compliance by the courts of appeals with the time limita-
tions under this section.’’.
(b) TECHNICAL AMENDMENT.—The table of chapters
at the beginning of part VI of title 28, United States Code,
is amended by adding after the item relating to chapter
153 the following new item:
‘‘154.
Special
habeas
corpus
procedures
in
capital
cases ............................................................................ 2261’’.
(c) EFFECTIVE DATE.—Chapter 154 of title 28,
United States Code (as added by subsection (a)) shall
apply to cases pending on or after the date of enactment
of this Act.
176
SEC. 908. TECHNICAL AMENDMENT.
Section 408(q) of the Controlled Substances Act (21
U.S.C. 848(q)) is amended by amending paragraph (9)
to read as follows:
‘‘(9) Upon a finding that investigative, expert, or
other services are reasonably necessary for the representa-
tion of the defendant, whether in connection with issues
relating to guilt or the sentence, the court may authorize
the defendant’s attorneys to obtain such services on behalf
of the defendant and, if so authorized, shall order the pay-
ment of fees and expenses therefor under paragraph (10).
No ex parte proceeding, communication, or request may
be considered pursuant to this section unless a proper
showing is made concerning the need for confidentiality.
Any such proceeding, communication, or request shall be
transcribed and made a part of the record available for
appellate review.’’.
SEC. 909. SEVERABILITY.
If any provision of this title, an amendment made by
this title, or the application of such provision or amend-
ment to any person or circumstance is held to be unconsti-
tutional, the remainder of this title, the amendments made
by this title, and the application of the provisions of such
to any person or circumstances shall not be affected there-
by.
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