section and the performance standards established
by the appointing authority.
‘‘(b) A mechanism for providing legal services to
indigents within the meaning of subsection (a)(1) of this
section shall include the following elements:
‘‘(1) The State shall provide legal services to—
‘‘(A) indigents charged with offenses for
which capital punishment is sought;
‘‘(B) indigents who have been sentenced to
death and who seek appellate, collateral, or uni-
tary review in State court; and
‘‘(C) indigents who have been sentenced to
death and who seek certiorari review of State
court judgments in the United States Supreme
Court.
‘‘(2) The State shall establish a counsel author-
ity, which shall be—
‘‘(A) a statewide defender organization;
‘‘(B) a resource center; or
‘‘(C) a counsel authority appointed by the
highest State court having jurisdiction over
criminal matters, consisting of members of the
bar with substantial experience in, or commit-
ment to, the representation of criminal defend-
ants in capital cases, and comprised of a bal-
anced representation from each segment of the
State’s criminal defense bar.
‘‘(3) The counsel authority shall—
‘‘(A) publish a roster of attorneys qualified
to be appointed in capital cases, procedures by
which attorneys are appointed, and standards
governing qualifications and performance of
counsel, which shall include—
‘‘(i) knowledge and understanding of
pertinent legal authorities regarding issues
in capital cases; and
‘‘(ii) skills in the conduct of negotia-
tions and litigation in capital cases, the in-
vestigation of capital cases and the psy-
chiatric history and current condition of
capital clients, and the preparation and
writing of legal papers in capital cases;
‘‘(B) monitor the performance of attorneys
appointed and delete from the roster any attor-
ney who fails to meet qualification and perform-
ance standards; and
‘‘(C) appoint a defense team, which shall
include at least 2 attorneys, to represent a cli-
ent at the relevant stage of proceedings, within
30 days after receiving notice of the need for
the appointment from the relevant State court.
‘‘(4) An attorney who is not listed on the roster
shall be appointed only on the request of the client
concerned and in circumstances in which the attor-
ney requested is able to provide the client with qual-
ity legal representation.
‘‘(5) No counsel appointed pursuant to this sec-
tion to represent a prisoner in State postconviction
proceedings 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 continued representa-
tion.
‘‘(6) The ineffectiveness or incompetence of
counsel appointed pursuant to this section during
State or Federal postconviction proceedings shall not
be a ground for relief in a proceeding arising under
section 2254 of this title. This limitation shall not
preclude the appointment of different counsel at any
phase of State or Federal postconviction proceed-
ings.
‘‘(7) Upon receipt of notice from the counsel
authority that an individual entitled to the appoint-
ment of counsel under this section has declined to
accept such an appointment, the court requesting
the appointment shall conduct, or cause to be con-
ducted, a hearing, at which the individual and coun-
sel proposed to be appointed under this section shall
be present, to determine the individual’s competency
to decline the appointment, and whether the individ-
ual has knowingly and intelligently declined it.
‘‘(8) Attorneys appointed pursuant to this sec-
tion shall be compensated on an hourly basis pursu-
ant to a schedule of hourly rates as periodically es-
tablished by the counsel authority after consultation
with the highest State court with jurisdiction over
criminal matters. Appointed counsel shall be reim-
bursed for expenses reasonably incurred in rep-
resenting the client, including the costs of law clerks,
paralegals, investigators, experts, or other support
services.
‘‘(9) Support services for staff attorneys of a
defender organization or resource center shall be
equal to the services listed in paragraph (8).’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 153 of title 28, United States
Code, is amended by adding after the provision added by
section 804 the following:
‘‘2257. Counsel in capital cases; State court.’’.
SEC. 6. SUCCESSIVE FEDERAL PETITIONS.
Section 2244(b) of title 28, United States Code, is
amended—
(1) by inserting ‘‘(1)’’ after ‘‘(b)’’;
(2) by inserting ‘‘, in the case of an applicant
not under sentence of death,’’ after ‘‘When’’; and
(3) by adding at the end the following:
‘‘(2) In the case of an applicant under sentence
of death, a claim presented in a second or successive
application, that was not presented in a prior appli-
cation under this chapter, shall be dismissed un-
less—
‘‘(A) the applicant shows that—
‘‘(i) the basis of the claim could not
have been discovered by the exercise of
reasonable diligence before the applicant
filed the prior application; or
‘‘(ii) the failure to raise the claim in
the prior application was due to action by
State officials in violation of the Constitu-
tion of the United States; and
‘‘(B) the facts underlying the claim would
be sufficient, if proven, to undermine the
court’s confidence in the applicant’s guilt of the
offense or offenses for which the capital sen-
tence was imposed, or in the validity of that
sentence under Federal law.’’.
SEC. 7. CERTIFICATES OF PROBABLE CAUSE.
The third paragraph of section 2253, of title 28,
United States Code, is amended to read as follows:
‘‘An appeal may not be taken to the court of
appeals from the final order in a habeas corpus pro-
ceeding where the detention complained of arises out
of process issued by a State court, unless the justice
or judge who rendered the order or a circuit justice
or judge issues a certificate of probable cause. How-
ever, an applicant under sentence of death shall have
a right of appeal without a certification of probable
cause, except after denial of a second or successive
application.’’.
SEC. 8. DUTIES OF THE DISTRICT COURT.
Section 2254(a) of title 28, United States Code, is
amended by adding at the end the following:
‘‘In adjudicating the merits of any such ground,
the court shall exercise independent judgment in
ascertaining the pertinent Federal legal standards
and in applying those standards to the facts and
shall not defer to a previous State court judgment
regarding a Federal legal standard or its application.
Upon request, the court shall permit the parties to
present evidence regarding material facts that were
not adequately developed in State court. The court
shall award relief with respect to any meritorious
constitutional ground, unless, in the case of a viola-
tion that can be harmless, the respondent shows that
the error was harmless beyond a reasonable doubt.’’.
SEC. 9. CLAIMS OF INNOCENCE.
(a) IN GENERAL.—Chapter 153 of title 28, United
States Code, is amended by adding after the provision
added by section 805 of this subtitle the following:
‘‘§ 2258. Claims of innocence
‘‘(a) At any time, and notwithstanding any other pro-
vision of law, a district court shall issue habeas corpus
relief on behalf of an applicant under sentence of death,
imposed either in Federal or in State court, who offers
credible newly discovered evidence which, had it been pre-
sented to the trier of fact or sentencing authority at trial,
would probably have resulted in—
‘‘(1) an acquittal of the offense for which the
death sentence was imposed; or
‘‘(2) a sentence other than death.
‘‘(b) An application filed pursuant to subsection (a)
shall offer substantial evidence which, if credible, would
establish one of the standards in subsection (a)(1) or (2).
An application that fails to do so may be dismissed.
‘‘(c) If the court concludes that an application meets
the requirements in subsection (b), the court shall—
‘‘(1) order the respondent to file an answer;
‘‘(2) permit the parties to conduct reasonable
discovery;
‘‘(3) conduct a hearing to resolve disputed is-
sues of fact; and
‘‘(4) upon request, issue a stay of execution
pending further proceedings in the district court and
on direct review of the district court’s judgment.
‘‘(d) If the court concludes that the applicant meets
the standards established by subsection (a)(1) or (2), the
court shall order his or her release, unless a new trial or,
in an appropriate case, a new sentencing proceeding, is
conducted within a reasonable time.
‘‘(e) If the court determines that the applicant is cur-
rently entitled to pursue other available and effective rem-
edies in either State or Federal court, the court may, at
the request of either party, suspend its consideration of
the application under this section until the applicant has
exhausted those remedies. A stay issued pursuant to sub-
section (c) shall remain in effect during such a suspension.
‘‘(f) An application under this section may be consoli-
dated with any other pending application under this chap-
ter, filed by the same applicant.’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 153 of title 28, United States
Code, is amended by adding after the provision added by
section 805 of this subtitle the following:
‘‘2258. Claims of innocence.’’.
SEC. 10. PROCEDURAL DEFAULT IN STATE COURT.
Section 2254 of title 28, United States Code, is
amended by adding the following:
‘‘(h)(1) A district court shall decline to consider a
claim under this section if—
‘‘(A) the applicant previously failed to raise the
claim in State court at the time and in the manner
prescribed by State law; the State courts, for that
reason, refused or would refuse to entertain the
claim; such refusal would constitute an adequate and
independent State law ground that would foreclose
direct review of the State court judgment in the Su-
preme Court of the United States; and
‘‘(B) the applicant fails to show cause for the
failure to raise the claim in State court and preju-
dice to the applicant’s right to fair proceedings or to
an accurate outcome resulting from the alleged viola-
tion of the Federal right asserted, or that failure to
consider the claim would result in a miscarriage of
justice.
‘‘(2) The court shall not find cause in any case in
which it appears that the applicant or counsel deliberately
withheld a claim from the State courts for strategic pur-
poses. An applicant may establish cause by showing that—
‘‘(A) the factual basis of the claim could not
have been discovered by the exercise of reasonable
diligence before the applicant could have raised the
claim in State court;
‘‘(B) the claim relies on a decision of the Su-
preme Court of the United States, announced after
the applicant might have raised the claim in State
court; or
‘‘(C) the failure to raise the claim in State
court was due to interference by State officials,
counsel’s ignorance or neglect, or counsel’s ineffec-
tive assistance in violation of the Constitution.’’.
HR 4018 RH——2