‘‘(2) The time at which the impediment to mak-
ing a motion created by governmental action in vio-
lation 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 dis-
covered through the exercise of reasonable dili-
gence.’’.
CHAPTER 2—SPECIAL PROCEDURES FOR
COLLATERAL PROCEEDINGS IN CAP-
ITAL CASES
SEC. 511. DEATH PENALTY LITIGATION PROCEDURES.
(a) IN GENERAL.—Title 28, United States Code, is
amended by inserting the following new chapter after
chapter 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; suc-
cessive petitions.
‘‘2258. Filing of habeas corpus petition; time requirements; tolling rules.
100
‘‘2259. Scope of Federal review; district court adjudications.
‘‘2260. Certificate of probable cause.
‘‘2261. Application to State unitary review procedure.
‘‘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
101
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.
102
‘‘§ 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;
‘‘(2) 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; or
‘‘(3) a State prisoner files a habeas corpus peti-
tion under section 2254 within the time required in
section 2258 and fails to make a substantial showing
of the denial of a Federal right or is denied relief
103
in the district court or at any subsequent stage of
review.
‘‘(c) On a second or later habeas corpus petition
under section 2254, no Federal court 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 to establish by clear and convincing evi-
dence 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-
104
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 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
105
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
petition for certiorari before the Supreme Court ex-
cept 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 pe-
riod established by this section.
106
‘‘§ 2259. 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;
‘‘(2) the result of the Supreme Court recogni-
tion of a new Federal right that is retroactively ap-
plicable; or
‘‘(3) based on a factual predicate that could not
have been discovered through the exercise of reason-
able 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 subsections (d) and (g) of sec-
tion 2254 of this title, the court shall rule on the claims
properly before it.
‘‘§ 2260. Certificate of probable cause
‘‘An appeal may not be taken to the court of appeals
from the final order of a district court denying relief in
a habeas corpus proceeding that is subject to the provi-
sions of this chapter unless a circuit justice or judge issues
107
a certificate of probable cause. A certificate of probable
cause may only be issued if the petitioner has made a sub-
stantial showing of the denial of a Federal right. The cer-
tificate of probable cause must indicate which specific
issue or issues satisfy this standard.
‘‘§ 2261. 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. 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 appointment, compensation and payment of reasonable
litigation expenses of competent counsel in the unitary re-
view proceedings, including expenses relating to the litiga-
tion of collateral claims in the proceedings. The rule of
court or statute must provide standards of competency for
the appointment 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), concern-
108
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 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 review’ and ‘direct review’ in those sections
shall be understood as referring to unitary review under
the State procedure. The references in sections 2257(a)
and 2258 to ‘an order under section 2256(c)’ shall be un-
derstood as referring to the post-trial order under sub-
section (b) concerning representation in the unitary review
proceedings, but if a transcript 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 transcript is made available
to the prisoner or his counsel.
109
‘‘§ 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 inter-
ests of justice warrant such a one-time extension. The spe-
110
cific grounds for the good cause finding shall be set forth
in writing 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 appeals 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 oth-
erwise not be entitled, for the purpose of litigating any
petition, 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 sentence. The State or Government may enforce the
time limitations under this section by applying to the court
of appeals or the Supreme Court for a writ of mandamus.
‘‘(e) The Administrative Office of United States
Courts shall report annually to Congress on the compli-
ance by the courts with the time limits established in this
section.
111
‘‘(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 prior-
ity 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 expe-
ditious 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’’.
CHAPTER 3—FUNDING FOR LITIGATION
OF FEDERAL HABEAS CORPUS PETI-
TIONS IN CAPITAL CASES
SEC. 521. 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 follow-
ing new section: