[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Proposed Rules]
[Pages 11705-11713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4800]
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DEPARTMENT OF JUSTICE
28 CFR Part 26
[Docket No. OJP (DOJ) 1540; AG Order No. 3255-2011]
RIN 1121-AA77
Office of the Attorney General; Certification Process for State
Capital Counsel Systems
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: Section 2265 of title 28, United States Code, instructs the
Attorney General to promulgate regulations to implement certification
procedures for States seeking to qualify for the expedited Federal
habeas corpus review procedures in capital cases under chapter 154 of
title 28. The procedural benefits of chapter 154 are available to
States that establish mechanisms for providing counsel to indigent
capital defendants in State postconviction proceedings that satisfy
certain statutory requirements. This proposed rule sets forth the
required regulations for the certification procedure.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before June 1, 2011. Comments received by mail will
be considered timely if they are
[[Page 11706]]
postmarked on or before that date. The electronic Federal Docket
Management System (FDMS) will accept comments until Midnight Eastern
Time at the end of that day.
ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW.,
Room 4234, Washington, DC 20530. To ensure proper handling, please
reference OAG Docket No. 1540 on your correspondence. You may submit
comments electronically or view an electronic version of this proposed
rule at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lisa Ellman, Office of Legal Policy,
(202) 514-4601 (not a toll-free number).
SUPPLEMENTARY INFORMATION: Posting of Public Comments. Please note that
all comments received are considered part of the public record and made
available for public inspection online at http://www.regulations.gov.
Such information includes personal identifying information (such as
your name and address) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name and address) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You also must locate all the personal
identifying information you do not want posted online in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
Overview
Chapter 154 of title 28, United States Code, makes special
procedures available to a State respondent in Federal habeas corpus
proceedings involving review of State capital judgments, but only if
the Attorney General has certified ``that [the] State has established a
mechanism for providing counsel in postconviction proceedings as
provided in section 2265,'' and if ``counsel was appointed pursuant to
that mechanism, petitioner validly waived counsel, petitioner retained
counsel, or petitioner was found not to be indigent.'' 28 U.S.C.
2261(b). Section 2265(a)(1) provides that, in order for a State to
qualify for the special habeas procedures, the Attorney General must
determine that ``the State has established a mechanism for the
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in State postconviction proceedings
brought by indigent [capital] prisoners'' and that the State ``provides
standards of competency for the appointment of counsel in [such
proceedings].''
Chapter 154 has been in place since the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public
Law 104-132, section 107, 110 Stat. 1214, 1221-26 (1996), but was
amended by the USA PATRIOT Improvement and Reauthorization Act of 2005,
Public Law 109-177, section 507, 120 Stat. 192, 250-51 (2006). Prior to
the 2006 amendment, the determination of a State's eligibility for the
special procedures was left to the Federal habeas courts. The 2006
amendment assigned responsibility for chapter 154 certifications to the
Attorney General of the United States, subject to de novo review by the
Court of Appeals for the District of Columbia Circuit.
Rulemaking History
Section 2265(b) directs the Attorney General to promulgate
regulations to implement the certification procedure. To fulfill this
mandate, the Department of Justice published a proposed rule in the
Federal Register on June 6, 2007, that proposed adding a new subpart
entitled ``Certification Process for State Capital Counsel Systems'' to
28 CFR part 26. 72 FR 31217. The comment period ended on August 6,
2007. The Department published a notice on August 9, 2007, reopening
the comment period, 72 FR 44816, and the reopened comment period ended
on September 24, 2007. The final rule establishing the chapter 154
certification procedure was published on December 11, 2008, 73 FR
75327, with an effective date of January 12, 2009.
In January 2009, the United States District Court for the Northern
District of California enjoined the Department ``from putting into
effect the rule * * * without first providing an additional comment
period of at least thirty days and publishing a response to any
comments received during such period.'' Habeas Corpus Resource Ctr. v.
U.S. Dep't of Justice, No. 08-2649, 2009 WL 185423, at *10 (Jan. 20,
2009) (preliminary injunction); Habeas Corpus Resource Ctr. v. U.S.
Dep't of Justice, No. 08-2649, slip op. at 1 (Jan. 8, 2009) (temporary
restraining order). On February 6, 2009, the Department solicited
further public comment, with the comment period closing on April 6,
2009. 74 FR 6131.
As the Department reviewed the submitted comments, it considered
further the statutory requirements governing the regulatory
implementation of the chapter 154 certification procedures. The
Attorney General determined that chapter 154 gave him greater
discretion in making certification determinations than the December 11,
2008 regulations would have allowed. Therefore, the Department
published a notice in the Federal Register on May 25, 2010, proposing
to revoke the December 11, 2008 regulations by removing them from the
Code of Federal Regulations pending the completion of a new rulemaking
process, during which the Department would further consider what
standards and procedures were appropriate. 75 FR 29217. The comment
period closed on June 24, 2010. On November 23, 2010, the Department
published a final rule removing the December 11, 2008 regulations. 75
FR 71353.
The rule proposed today is the result of the Attorney General's
reconsideration of the appropriate standards and procedures for chapter
154 certification. Sections 26.20 and 26.21 of the proposed rule are,
respectively, a general statement of purpose and a section defining
certain terms appearing in chapter 154. These sections are unchanged
from the December 11, 2008 final rule. Section 26.22 explains the
requirements for certification under chapter 154, relating to
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in State postconviction proceedings in
capital cases. It is significantly different from the corresponding
section in the December 11, 2008 regulations, particularly with respect
to counsel
[[Page 11707]]
competency and compensation standards. Section 26.23 sets out the
procedures for accepting, obtaining public comment on, and deciding
State requests for chapter 154 certification. It is similar in
substance to the corresponding section of the December 11, 2008
regulations, but in some respects simplified and updated. A section-by-
section analysis of the new proposed rule follows.
Section-by-Section Analysis
Section 26.20
Section 26.20, which is unchanged from the December 11, 2008
regulations, explains the rule's purpose to implement the certification
procedure for chapter 154.
Section 26.21
Section 26.21, which is also unchanged from the December 11, 2008
regulations, defines certain terms used in chapter 154 and the
regulations.
Under 28 U.S.C. 2265(a), a certification request must be made by
``an appropriate State official.'' Prior to the 2006 amendments to
chapter 154, Federal courts entertaining habeas corpus applications by
State prisoners under sentence of death would decide which set of
habeas corpus procedures applied--chapter 153 or chapter 154 of title
28--and State attorneys general responsible for such litigation could
request determinations that their States had satisfied the requirements
for the applicability of chapter 154. The 2006 amendments to chapter
154 were not intended to disable the State attorneys general from their
pre-existing role in this area and State attorneys general continue in
most instances to be the officials with the capacity and motivation to
seek chapter 154 certification for their States. See 73 FR at 75329-30.
Section 26.21 of the rule accordingly provides that the appropriate
official to seek chapter 154 certification is normally the State
attorney general. In those few States, however, where the State
attorney general does not have responsibilities relating to Federal
habeas corpus litigation, the Chief Executive of the State will be
considered the appropriate State official to make a submission on
behalf of the State.
Section 26.21 defines ``State postconviction proceedings'' as
``collateral proceedings in State court, regardless of whether the
State conducts such proceedings after or concurrently with direct State
review.'' Collateral review normally takes place following the
completion of direct review of the judgment, but some States have
special procedures for capital cases in which collateral proceedings
and direct review may take place concurrently. Formerly separate
provisions for the application of chapter 154 in States with ``unitary
review'' procedures (concurrent collateral and direct review) were
replaced by the 2006 amendments with provisions that permit chapter 154
certification for all States under uniform standards, regardless of
their timing of collateral review vis-a-vis direct review. Compare 28
U.S.C. 2261(b), 2265 (2006) (as amended by the USA PATRIOT Improvement
and Reauthorization Act of 2005), with 28 U.S.C. 2261(b), 2265 (2000)
(as enacted by AEDPA); see 152 Cong. Rec. S1620 (daily ed. Mar. 2,
2006) (remarks of Sen. Kyl) (explaining that the current provisions
simplify the chapter 154 qualification standards, ``which obviates the
need for separate standards for those States that make direct and
collateral review into separate vehicles and those States with unitary
procedures'').
The definition of ``State postconviction proceedings'' in the rule
reflects the underlying objective of chapter 154 to provide expedited
Federal habeas corpus review in capital cases arising in States that
have gone beyond the constitutional requirement of appointing counsel
for indigents at trial and on appeal by extending the appointment of
counsel to indigent capital defendants in State collateral proceedings.
See 73 FR at 75332-33, 75337 (reviewing relevant legislative and
regulatory history). The provisions of chapter 154, as well as its
legislative history, reflect the understanding of ``postconviction
proceedings'' as not encompassing all proceedings that occur after
conviction (e.g., sentencing proceedings, direct review), but rather as
referring to collateral proceedings. See 28 U.S.C. 2261(e) (providing
that ineffectiveness or incompetence of counsel during postconviction
proceedings in a capital case cannot be a ground for relief in a
Federal habeas corpus proceeding); 28 U.S.C. 2263(a), (b)(2) (180-day
time limit for Federal habeas filing under chapter 154 starts to run
``after final State court affirmance of the conviction and sentence on
direct review or the expiration of the time for seeking such review''
subject to tolling ``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''); 152 Cong. Rec.
S1620, 1624-25 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl)
(explaining that chapter 154 provides incentives for States to provide
counsel in State postconviction proceedings, equated to collateral
proceedings); 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 2005)
(extension of remarks of Rep. Flake) (same understanding); see also,
e.g., Murray v. Giarratano, 492 U.S. 1 (1989) (equating postconviction
and collateral proceedings).
Section 26.22
Section 26.22 sets out the requirements for certification that a
State must meet to qualify for the application of chapter 154. These
are the requirements in 28 U.S.C. 2261(c)-(d) and 2265(a)(1).
Paragraph (a) of Sec. 26.22--Appointment of Counsel
Paragraph (a) of Sec. 26.22 sets out the requirements of chapter
154 concerning appointment of counsel that appear in 28 U.S.C. 2261(c)-
(d).
Paragraph (b) of Sec. 26.22--Competent Counsel
Paragraph (b) of Sec. 26.22 explains how States may satisfy the
requirement to provide for appointment of ``competent counsel'' and to
provide ``standards of competency'' for such appointments. 28 U.S.C.
2265(a)(1)(A), (C).
The corresponding portion of the December 11, 2008 regulations
construed the reference to appointment of ``competent counsel'' in
section 2265(a)(1)(A) as a cross-reference to counsel meeting the
competency standards provided by the State pursuant to section
2265(a)(1)(C). It accordingly treated the definition of such standards
as a matter of State discretion, not subject to further review by the
Attorney General. See 73 FR at 75331. However, these provisions may
also reasonably be construed as permitting the Attorney General to
require a threshold of minimum counsel competency, while recognizing
substantial State discretion in setting counsel competency standards.
See generally Memorandum for the Attorney General from David J. Barron,
Acting Assistant Attorney General, Office of Legal Counsel, Re: The
Scope of the Attorney General's Authority in Certifying Whether a State
Has Satisfied the Requirements for Appointment of Competent Post-
Conviction Counsel in Chapter 154 of Title 28, United States Code (Dec.
16, 2009), available at http://www.justice.gov/olc/. The latter
understanding is supported by cases interpreting chapter 154, see,
e.g., Spears v. Stewart, 283 F.3d 992, 1013 (9th Cir. 2002)
(recognizing that ``Congress * * * intended the states to have
substantial discretion to determine the substance of the competency
[[Page 11708]]
standards'' under chapter 154 while still reviewing the adequacy of
such standards), and by the original Powell Committee proposal from
which many features of chapter 154 ultimately derive, see 135 Cong.
Rec. 24692, 24696 (Oct. 16, 1989). This understanding is adopted in
Sec. 26.22(b) of the proposed rule.
The specific minimum standards set forth in paragraph (b) are based
on judgments by Congress in federal laws concerning adequate capital
counsel competency standards and on judicial interpretation of the
counsel competency requirements of chapter 154. Three broad options are
provided for States to satisfy this requirement--an option involving an
experience requirement derived from the standard for appointment of
counsel in Federal court proceedings in capital cases (paragraph
(b)(1)); an option involving qualification standards set in a manner
consistent with relevant portions of the Innocence Protection Act
(paragraph (b)(2)); and an option of assuring an appropriate level of
proficiency in other ways, such as by requiring some combination of
experience and training (paragraph (b)(3)).
Option 1: Sec. 26.22(b)(1)--The Competency Standards for Federal Court
Proceedings
As provided in paragraph (b)(1) of Sec. 26.22, a State may satisfy
chapter 154's requirement relating to counsel competency by requiring
appointment of counsel ``who have been admitted to the bar for at least
five years and have at least three years of felony litigation
experience.'' This is based on the standard for appointed counsel in
capital case proceedings in Federal court. See 18 U.S.C. 3599(a)-(e).
Because Congress has determined that such a counsel competency standard
is adequate for capital cases in Federal court proceedings, including
postconviction proceedings, see id. Sec. 3599(a)(2), it will also be
considered adequate for chapter 154 purposes when such cases are at the
stage of State postconviction review.
The counsel competency standards for Federal court proceedings in
capital cases under 18 U.S.C. 3599 do not require adherence to the
five-year/three-year experience requirement in all cases, but provide
that the court ``for good cause, may appoint another attorney whose
background, knowledge, or experience would otherwise enable him or her
to properly represent the defendant,'' with due consideration of the
seriousness of the penalty (i.e., capital punishment) and the nature of
the litigation. Id. Sec. 3599(d). For example, a court might consider
it appropriate to appoint an attorney who is a law professor with
expertise in capital punishment law and training in capital
postconviction litigation to represent a prisoner under sentence of
death, even if the attorney has less than three years of felony
litigation experience. The rule in paragraph (b)(1) accordingly does
not require the imposition of a five-year/three-year minimum experience
requirement in all cases, but allows States that generally impose such
a requirement to permit the appointment of other counsel who would
qualify for appointment under the standards of 18 U.S.C. 3599, i.e.,
those whose background, knowledge, or experience would otherwise enable
them to properly represent prisoners under sentence of death
considering the seriousness of the penalty and the nature of the
litigation. This is reflected in the language in paragraph (b)(1)
allowing appointment of counsel ``who would otherwise qualify for
appointment pursuant to the standards for Federal habeas corpus
proceedings reviewing State capital cases under 18 U.S.C. 3599.''
Option 2: Sec. 26.22(b)(2)--The Innocence Protection Act Standards
Paragraph (b)(2) in Sec. 26.22 sets forth a second option for
States to satisfy the counsel competency requirements of chapter 154,
specifically, by setting qualification standards for appointment of
postconviction capital counsel in a manner consistent with the
Innocence Protection Act (IPA), 42 U.S.C. 14163-14163e. The IPA directs
the Attorney General to provide grants to States to create or improve
``effective system[s] for providing competent legal representation'' in
capital cases, 42 U.S.C. 14163(c)(1), and provides a definition of
``effective system'' that is largely based on elements of the American
Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (rev. ed. Feb. 2003) (ABA
Guidelines), 42 U.S.C. 14163(e). The IPA specifies that such effective
systems are to include appointment of capital counsel (i) by a public
defender program, (ii) by an entity composed of individuals with
demonstrated knowledge and expertise in capital cases (other than
current prosecutors) that is established by statute or by the highest
State court with criminal case jurisdiction, or (iii) by the court
appointing qualified attorneys from a roster maintained by a State or
regional selection committee or similar entity pursuant to a pre-
existing statutory procedure. 42 U.S.C. 14163(e)(1).
Under the IPA requirements, the appointing authority or an
appropriate designated entity must ``establish qualifications for
attorneys who may be appointed to represent indigents in capital
cases.'' 42 U.S.C. 14163(e)(2)(A). The IPA does not prescribe the
content of these qualifications but assumes that the specifications
regarding the nature of the appointment or selection authority and the
associated requirements for establishment of qualifications can be
relied on to provide appropriate competency standards. Paragraph (b)(2)
in Sec. 26.22 follows this legislative judgment in relation to States'
satisfaction of the counsel competency requirements of chapter 154.
Thus, a State's capital counsel mechanism will be deemed adequate for
purposes of chapter 154's counsel competency requirements if it
provides for the appointment of counsel in State postconviction
proceedings in capital cases in a manner consistent with 42 U.S.C.
14163(e)(1) and establishes standards of competency for such counsel in
a manner consistent with 42 U.S.C. 14163(e)(2)(A).
Option 3: Sec. 26.22(b)(3)--Other Standards Reasonably Assuring
Proficiency
In enacting chapter 154, ``Congress did not envision any specific
competency standards but, rather, intended the states to have
substantial discretion to determine the substance of the competency
standards.'' Spears, 283 F.3d at 1013 (citing 177 Cong. Rec. S3191,
S3220 (daily ed. Mar. 13, 1991)). The options described in paragraphs
(b)(1) and (b)(2) in Sec. 26.22 accordingly do not exhaust the means
by which States may satisfy chapter 154's requirements concerning
counsel competency. Indeed, Congress in formulating chapter 154
rejected a recommendation that States uniformly be required to satisfy
the standards for Federal court proceedings in capital cases that
currently appear in 18 U.S.C. 3599, see 73 FR at 75331, and in amending
chapter 154 in 2006 Congress did not modify chapter 154 to require
adherence by States to the IPA standards that had been enacted in 2004
but rather reenacted the more general language of chapter 154 relating
to counsel competency.
Consequently, as provided in paragraph (b)(3) in Sec. 26.22, the
Attorney General will consider whether a State's counsel competency
standards reasonably assure appointment of counsel with a level of
proficiency appropriate for State postconviction litigation in capital
cases, even if they do not meet the particular criteria set
[[Page 11709]]
forth in paragraph (b)(1) or (b)(2). As in the courts' consideration of
the adequacy of State competency standards prior to the 2006 amendments
to chapter 154, no definite formula can be prescribed for this review,
and the Attorney General will assess such State mechanisms
individually. Measures that will be deemed relevant include standards
of experience, knowledge, skills, training, education, or combinations
thereof that a State requires attorneys to meet in order to be eligible
for appointment in State capital postconviction proceedings. Cf. 18
U.S.C. 3599(d) (allowing appointment of counsel whose background,
knowledge, or experience would otherwise enable such counsel to
properly represent the defendant); Spears, 283 F.3d at 1012-13 (finding
that competency standards involving combination of experience,
proficiency, and education were adequate under chapter 154); ABA
Guidelines Sec. Sec. 5.1.B.2, 8.1.B, pp. 35, 46 (recommending skill
and training requirements for capital counsel). Also, the rule in
paragraphs (b)(1) and (b)(2) of Sec. 26.22 identifies particular
approaches that will be considered adequate, specifically, those of the
Federal capital counsel statute (18 U.S.C. 3599) and of the Innocence
Protection Act (42 U.S.C. 14163(e)(1), (2)(A)). These approaches
accordingly may serve as benchmarks, and States' adoption of competency
requirements that are similar or that are likely to result in even
higher levels of proficiency will weigh in favor of a finding of
adequacy for purposes of chapter 154. As indicated in the prefatory
language in paragraph (b) of Sec. 26.22, State capital counsel
mechanisms will be deemed adequate in relation to counsel competency if
they meet or exceed the standards identified in the paragraph. States
will not be penalized for going beyond the minimum required by the
rule. Thus, for example, in relation to paragraph (b)(1), State
competency standards will be considered sufficient if they require,
e.g., five years of felony litigation experience rather than three,
uniform satisfaction of the five-year/three-year experience requirement
rather than allowing some exception as in 18 U.S.C. 3599(d), or
training requirements for appointment in addition to the specified
experience requirement.
The rule does not require that all counsel in a State qualify under
the same standard. Alternative standards may be used so long as the
State mechanism requires that all counsel satisfy some standard
qualifying under paragraph (b). Cf. 18 U.S.C. 3599(d) (allowing
exceptions to categorical experience requirement); Spears, 283 F.3d at
1013 (finding that alternative standards are allowed under chapter
154). Hence, for example, a State system could pass muster by requiring
that appointed counsel either satisfy an experience standard sufficient
under paragraph (b)(1) or satisfy an alternative standard sufficient
under paragraph (b)(3) involving more limited experience but an
additional training requirement.
Paragraph (c) of Sec. 26.22--Compensation of Counsel
Paragraph (c) of Sec. 26.22 explains how a State may satisfy the
requirement that it have established a mechanism for the compensation
of appointed counsel. 28 U.S.C. 2265(a)(1)(A). The corresponding
portion of the December 11, 2008 regulations assumed that levels of
compensation for purposes of chapter 154 were a matter of State
discretion, not subject to review by the Attorney General, because the
statute refers simply to ``compensation'' and imposes no further
requirement that the authorized compensation be ``adequate'' or
``reasonable.'' See 73 FR at 75331-32. However, the broader statutory
context is the requirement that the State establish a mechanism ``for
the appointment [and] compensation * * * of competent counsel.'' 28
U.S.C. 2265(a)(1)(A). This requirement reflects a determination by
Congress that reliance on unpaid volunteers to represent indigent
prisoners under sentence of death is insufficient, and a State
mechanism affording inadequate compensation could similarly fall short
in ensuring the availability of competent counsel for appointment.
Hence, when a State relies on a compensation incentive to secure
competent counsel, chapter 154 is reasonably construed to permit the
Attorney General to review the adequacy of authorized compensation.
This understanding is adopted in Sec. 26.22(c) of the proposed rule.
Paragraph (c)(1) in Sec. 26.22 describes a number of possible
compensation standards that will be considered adequate for purposes of
chapter 154, generally using as benchmarks the authorizations for
compensation of capital counsel that have been deemed adequate in other
Acts of Congress.
The first option, appearing in paragraph (c)(1)(A), is compensation
comparable to that authorized by Congress for representation in Federal
habeas corpus proceedings reviewing State capital cases. 18 U.S.C.
3599(g)(1). This level of compensation should similarly be adequate to
ensure the availability of competent counsel for appointment in such
cases at the stage of State postconviction review.
The second option, appearing in paragraph (c)(1)(B), is
compensation comparable to that of retained counsel who meet competency
standards sufficient under paragraph (b). The Innocence Protection Act
and the ABA Guidelines similarly endorse reliance on market rates for
legal representation to provide adequate compensation for appointed
capital counsel. See 42 U.S.C. 14163(e)(2)(F)(ii)(II); ABA Guidelines
Sec. 9.1.B.3, p. 49. Compensation sufficient to induce competent
attorneys to carry out such representation for hire should likewise be
sufficient to attract competent attorneys to accept appointments for
such representation.
The third option, appearing in paragraph (c)(1)(C), is compensation
comparable to that of appointed counsel in State appellate or trial
proceedings in capital cases. Cf. 18 U.S.C. 3599(g)(1) (authorization
for compensation of capital counsel not differentiating between
compensation at different stages of representation). The compensation
afforded at the stages of trial and appeal must be sufficient to secure
competent attorneys to provide representation because effective legal
representation of indigents is constitutionally required at those
stages. Comparable compensation should accordingly be sufficient for
that purpose at the postconviction stage.
The fourth option, appearing in paragraph (c)(1)(D), is
compensation comparable to that of attorneys representing the State in
State postconviction proceedings in capital cases. This option also
follows the Innocence Protection Act and the ABA Guidelines, which
provide that capital counsel employed by defender organizations should
be compensated on a salary scale commensurate with the salary scale of
prosecutors in the jurisdiction. 42 U.S.C. 14163(e)(2)(F)(ii)(I); ABA
Guidelines Sec. 9.1.B.2, p. 49. The rule allows this approach for
compensation of both public defenders and private counsel, but
recognizes that private defense counsel may have to pay from their own
pockets overhead expenses that publicly employed prosecutors do not
bear. The rule accordingly specifies that, if paragraph (c)(1)(D) is
relied on to justify the level of compensation authorized for private
counsel, the compensation standard should take account of overhead
costs (if any) that are not otherwise payable as reasonable litigation
expenses. Cf. Baker v. Corcoran, 220 F.3d 276, 285-86 (4th Cir. 2000)
(finding that compensation resulting in substantial losses to
[[Page 11710]]
appointed counsel was inadequate under chapter 154).
In comparing a State's compensation standards to the benchmarks
identified in paragraph (c)(1), both hourly rates and overall limits on
compensation will be taken into account. For example, under paragraph
(c)(1)(C), suppose that State law authorizes the same hourly rate for
compensation of appointed capital counsel at the appellate stage and in
postconviction proceedings, but it specially imposes a low overall
limit on compensable hours at the postconviction stage. The
compensation authorized at the respective stages may then not be
comparable in any realistic sense, and the objective of ensuring the
availability of competent counsel for postconviction representation may
not be realized, because counsel who accepted such representation would
effectively be required to function as uncompensated volunteers to the
extent they needed to work beyond the maximum number of compensable
hours. This does not mean that State compensation provisions will be
deemed inadequate if they specially prescribe presumptive limits on
overall compensation at the postconviction stage, but comparability to
the paragraph (c)(1) benchmarks may then depend on whether the State
provides means for authorizing compensation beyond the presumptive
maximum where necessary. Cf. Spears, 283 F.3d at 1015 (approving a
presumptive 200-hour limit under chapter 154 where compensation was
available for work beyond that limit if reasonable); Mata v. Johnson,
99 F.3d 1261, 1266 (5th Cir. 1996), vacated in part on reh'g on other
grounds, 105 F.3d (5th Cir. 1997) (overall $7500 limit on compensation
was not facially inadequate under chapter 154 and was not shown
inadequate in the particular case).
As with the counsel competency standards of paragraph (b), the
counsel compensation standards of paragraph (c)(1) provide only a floor
that States are free to exceed, and not all counsel must be compensated
in conformity with a single standard. Rather, a State may adopt
alternative standards, each comparable to or exceeding some benchmark
identified in paragraph (c)(1), and provide for compensation of
different counsel or classes thereof in conformity with different
standards. For example, a State might provide for representation of
some indigent capital defendants in postconviction proceedings by
appointed private counsel and some by public defender personnel,
compensate the private counsel in conformity with paragraph (c)(1)(C),
and compensate the public defender counsel in conformity with paragraph
(c)(1)(D).
The rule recognizes that the compensation options set out in
paragraph (c)(1) of Sec. 26.22 are not necessarily the only means by
which a State may provide competent counsel. State compensation
provisions for capital counsel have been deemed adequate for purposes
of chapter 154 and other Federal laws independent of any comparison to
the benchmarks in paragraph (c)(1). See 42 U.S.C. 14163(e)(2)(F)(i)
(State may compensate under qualifying statutory procedure predating
the Innocence Protection Act); Spears, 283 F.3d at 1015 (State could
compensate at ``a rate of up to $100 an hour, a rate that neither
Petitioner nor amici argue was unreasonable''). Also, a State may
secure representation for indigent capital defendants in postconviction
proceedings by means not dependent on any special financial incentive
for accepting appointments, such as by providing salaried public
defender personnel to carry out such assignments as part of their
duties. Accordingly, under paragraph (c)(2) in Sec. 26.22, capital
counsel mechanisms involving compensation provisions that do not
satisfy paragraph (c)(1) are approvable if they are otherwise
reasonably designed to ensure the availability of competent counsel.
Paragraph (d) of Sec. 26.22--Payment of Reasonable Litigation Expenses
Paragraph (d) of Sec. 26.22 incorporates the requirement in 28
U.S.C. 2265(a)(1)(A) to provide for the payment of reasonable
litigation expenses. An inflexible cap on reimbursable litigation
expenses in capital postconviction proceedings could contravene this
requirement by foreclosing the payment of costs incurred by counsel,
even if determined by the court to be reasonably necessary. However,
the requirement does not foreclose a presumptive limit if the State
provides means for authorizing payment of litigation expenses beyond
the limit where necessary. Cf. 18 U.S.C. 3599(f), (g)(2) (establishing
presumptive $7500 limit on payment for litigation expenses in federal
court proceedings in capital cases, with authority for chief judge or
delegee to approve higher amounts); Mata, 99 F.3d at 1266 (concluding
that overall $2500 limit on payment of litigation expenses was not
facially inadequate under chapter 154 and was not shown to be
inadequate in the particular case).
Section 26.23
Section 26.23 in the rule sets out the mechanics of the
certification process for States seeking to opt in to chapter 154.
Paragraph (a) provides that an appropriate State official may
request in writing that the Attorney General determine whether the
State meets the requirements for chapter 154 certification. Paragraph
(b) provides that the Attorney General will make the request available
on the Internet and solicit public comment on the request by publishing
a notice in the Federal Register. It requires Internet availability
because State requests for certification may include supporting
materials not readily reproducible or viewable in the Federal Register,
such as copies of State statutes, rules, and judicial decisions bearing
on the State's satisfaction of chapter 154's requirements for
certification.
As provided in paragraph (c), the Attorney General will review the
State's request, including consideration of timely public comments
received in response to the Federal Register notice. The Attorney
General will decide whether the State has satisfied the requirements
for chapter 154 certification and will publish the certification in the
Federal Register if certification is granted. The certification will
include a determination of the date the capital counsel mechanism
qualifying the State for certification was established, as that date is
the effective date of the certification. 28 U.S.C. 2265(a)(2).
Paragraph (d) addresses the effect of changes or alleged changes in
a State's capital counsel mechanism after that mechanism has been
certified by the Attorney General. The paragraph first addresses
situations involving changes or alleged changes in a State's capital
counsel mechanism prior to State postconviction proceedings in a
capital case. Chapter 154's expedited Federal habeas corpus procedures
are available only in cases in which both of two statutory conditions
are met: (i) The State's capital counsel mechanism has been certified
by the Attorney General, 28 U.S.C. 2261(b)(1), and (ii) ``counsel was
appointed pursuant to that mechanism''--i.e., the mechanism certified
by the Attorney General--unless the petitioner ``validly waived counsel
* * * [or] retained counsel * * * or * * * was found not to be
indigent,'' 28 U.S.C. 2261(b)(2). The first sentence of paragraph (d)
therefore notes that certification by the Attorney General under
chapter 154 reflects the Attorney General's determination that the
State capital counsel mechanism examined in the Attorney General's
review satisfies chapter 154's requirements. If a State later
[[Page 11711]]
discontinues that mechanism before counsel is appointed in a given
State postconviction proceeding, then counsel in that case will not
have been ``appointed pursuant to'' the mechanism that was approved by
the Attorney General and chapter 154 would accordingly be inapplicable.
Similarly, if a State later changes or is alleged to have changed its
capital counsel mechanism, then chapter 154 may lead to litigation in
Federal habeas courts, with those courts responsible for deciding
whether the State has actually changed its mechanism and, if so,
whether the change means that counsel (even if appointed) was appointed
pursuant to what is in effect a new and uncertified mechanism, rather
than the mechanism certified by the Attorney General.
To avoid such litigation, the second sentence of paragraph (d)
provides that a State may seek a new certification by the Attorney
General if it changes or is alleged to have changed a previously
certified capital counsel mechanism. If a State wishes to improve on a
certified capital counsel mechanism, then certification by the Attorney
General of the new or revised mechanism will allow the State to avoid
Federal habeas court litigation over whether chapter 154 is applicable
to cases involving appointments made pursuant to that mechanism.
Similarly, if legal questions are raised about the continued
applicability of chapter 154 based on changes or alleged changes in a
certified capital counsel mechanism, a State may seek a new
certification by the Attorney General that its current mechanism
satisfies chapter 154's requirements, ensuring the continued
applicability of chapter 154's expedited Federal habeas corpus
procedures. By seeking a new certification of a new or revised capital
counsel mechanism, a State may ensure that it is the Attorney General,
subject to review by the D.C. Circuit Court of Appeals, who determines
whether its capital counsel mechanism is in present compliance with
chapter 154's requirements, see 28 U.S.C. 2261(b)(1), 2265(c)(2), and
avoid litigation over that matter in the Federal habeas courts.
The final sentence in paragraph (d) states that subsequent changes
in a State's capital counsel mechanism do not affect the applicability
of chapter 154 in cases in which a mechanism certified by the Attorney
General existed throughout State postconviction proceedings in the
case. For example, suppose that the Attorney General certifies a
State's capital counsel mechanism in 2012, the State postconviction
proceedings in a capital case are carried out in 2013 and 2014 and
counsel is appointed in those proceedings pursuant to the certified
mechanism, and Federal habeas corpus proceedings in the case commence
in 2015. Suppose further that the State makes some change in 2015 to
its counsel competency or compensation standards. Because a certified
capital counsel mechanism would have been in place throughout State
postconviction review, the prerequisites for expedited Federal habeas
corpus review under chapter 154 would be satisfied, see 28 U.S.C.
2261(b). That result would not be affected by later changes in the
State's postconviction capital counsel mechanism.
Regulatory Certifications
Executive Order 12866--Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review, section 1(b),
Principles of Regulation. The Department of Justice has determined that
this rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f), and, accordingly, this rule has been reviewed by
the Office of Management and Budget. The determination that this is a
significant regulatory action, however, does not reflect a conclusion
that it is ``likely to result in a rule that may * * * [h]ave an annual
effect on the economy of $100 million or more'' or other adverse
effects as described in section 3(f)(1) of the Executive Order. This
rule will have no economic effect unless particular States (i) decide,
in their discretion, that any costs entailed in meeting the chapter 154
capital counsel requirements are offset or justified by resulting cost
reductions or other benefits to the State under chapter 154, and (ii)
accordingly undertake to make any changes needed in their capital
counsel systems to meet the chapter 154 requirements and apply to the
Attorney General for certification.
If States decide to apply for chapter 154 certification, their
resulting costs will mainly depend on (i) the number of capital cases
these States litigate in State postconviction proceedings, and (ii) the
incremental difference (if any) between their current per-case capital
litigation costs and the corresponding costs under a chapter 154-
compliant system. Regarding the number of capital cases, at the end of
2009, 36 states held 3,118 prisoners under sentence of death. See
Bureau of Justice Statistics, Office Justice Programs, U.S. Department
of Justice, Capital Punishment, 2009--Statistical Tables at 8, table 4
(Dec. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf. Regarding the incremental costs of satisfying the chapter
154 standards, States accounting for the great majority of capital
cases in the United States already provide for appointment of counsel
in State postconviction proceedings. These States may still fall short
of satisfying the chapter 154 standards relating to payment of
litigation expenses or compensation of counsel. However, the costs
necessary to correct such deficiencies would be limited to the
difference between existing caps and any higher amounts necessary to
defray reasonable litigation expenses and to secure competent attorneys
for appointment, and this rule affords States a variety of options that
may minimize any resulting increase in costs.
Even assuming that all States will upgrade their postconviction
capital counsel mechanisms to the extent necessary to satisfy the
proposed rule, and that the number of capital cases pending at any time
in State postconviction proceedings is as high as 2,000, the total cost
for the States could not reach $100 million annually unless the average
increase in litigation costs were $50,000 each year for each case in
State postconviction proceedings. There is no reason to believe that
costs would increase to that degree, and any increased costs at that
stage would be subject to offset by savings resulting from chapter
154's expedited procedures in subsequent Federal habeas corpus review.
See 28 U.S.C. 2262, 2264, 2266. Moreover, because the States would more
fully defray the costs of representing indigent capital defendants in
State postconviction proceedings, there would be less need for
representation by private counsel on a pro bono basis, often arranged
through postconviction capital defense projects. Thus, State costs also
would be offset by reduced costs for private entities and individuals
who otherwise would provide representation, reducing the overall
economic effect. For the foregoing reasons, it is not expected that
this rule will or may have an annual effect on the economy of $100
million or more.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. It provides only a framework for those
States that wish to qualify for the benefits of the expedited
[[Page 11712]]
habeas procedures of chapter 154 of title 28 of the United States Code.
Therefore, in accordance with Executive Order 13132, it is determined
that this rule does not have sufficient federalism implications to
warrant the preparation of a federalism assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in section
3(a) and (b)(2) of Executive Order 12988.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. This rule provides
only a framework for those States that wish to qualify for the benefits
of the expedited habeas procedures of chapter 154 of title 28 of the
United States Code.
Unfunded Mandates Reform Act of 1995
This rule will not result in aggregate expenditures by state, local
and tribal governments or by the private sector of $100,000,000 or more
in any one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 26
Law enforcement officers, Prisoners.
Accordingly, for the reasons set forth in the preamble, part 26 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 26--DEATH SENTENCES PROCEDURES
1. The authority citation for part 26 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509,
510, 2261, 2265.
2. Add Subpart B to read as follows:
Subpart B--Certification Process for State Capital Counsel Systems
Sec.
26.20 Purpose.
26.21 Definitions.
26.22 Requirements.
26.23 Certification process.
Sec. 26.20 Purpose.
Sections 2261(b)(1) and 2265(a) of title 28 of the United States
Code require the Attorney General to certify whether a State has a
mechanism for providing legal representation to indigent prisoners in
State postconviction proceedings in capital cases that satisfies the
requirements of chapter 154 of title 28. If certification is granted,
sections 2262, 2263, 2264, and 2266 of chapter 154 of title 28 apply in
relation to Federal habeas corpus review of capital cases from the
State. Subsection (b) of 28 U.S.C. 2265 directs the Attorney General to
promulgate regulations to implement the certification procedure under
subsection (a) of that section.
Sec. 26.21 Definitions.
For purposes of this part, the term--
Appropriate state official means the State Attorney General, except
that, in a State in which the State Attorney General does not have
responsibility for Federal habeas corpus litigation, it means the Chief
Executive thereof.
State postconviction proceedings means collateral proceedings in
State court, regardless of whether the State conducts such proceedings
after or concurrently with direct State review.
Sec. 26.22 Requirements.
The Attorney General will certify that a State meets the
requirements for certification under 28 U.S.C. 2261 and 2265 if the
Attorney General determines that the State has established a mechanism
for the appointment of counsel for indigent prisoners under sentence of
death in State postconviction proceedings that satisfies the following
standards:
(a) As provided in 28 U.S.C. 2261(c) and (d), the mechanism must
offer to all such prisoners postconviction counsel, who may not be
counsel who previously represented the prisoner at trial unless the
prisoner and counsel expressly requested continued representation, and
the mechanism must provide for the entry of an order by a court of
record--
(1) Appointing one or more attorneys as 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
prisoner is not indigent.
(b) The mechanism must provide for appointment of competent counsel
as defined in State standards of competency for such appointments that
meet or exceed any of the following:
(1) Appointment of counsel who have been admitted to the bar for at
least five years and have at least three years of felony litigation
experience or who would otherwise qualify for appointment pursuant to
the standards for Federal habeas corpus proceedings reviewing State
capital cases under 18 U.S.C. 3599;
(2) Appointment of counsel meeting qualification standards
established in conformity with 42 U.S.C. 14163(e)(1), (2)(A); or
(3) Appointment of counsel satisfying qualification standards that
reasonably assure a level of proficiency appropriate for State
postconviction litigation in capital cases.
(c) The mechanism must provide for compensation of appointed
counsel.
(1) A State's provision for compensation will be deemed adequate if
the authorized compensation is comparable to or exceeds--
(i) The compensation of counsel appointed pursuant to 18 U.S.C.
3599 in Federal habeas corpus proceedings reviewing capital cases from
the State;
(ii) The compensation of retained counsel in State postconviction
proceedings in capital cases who meet State standards of competency
sufficient under paragraph (b) of this section;
(iii) The compensation of appointed counsel in State appellate or
trial proceedings in capital cases; or
(iv) The compensation of attorneys representing the State in State
postconviction proceedings in capital cases, subject to adjustment for
private counsel to take account of overhead costs not otherwise payable
as reasonable litigation expenses.
(2) Provisions for compensation not satisfying the criteria in
paragraph (c)(1) of this section will be deemed adequate only if the
State mechanism is otherwise reasonably designed to ensure the
availability for appointment of counsel who meet State standards of
competency sufficient under paragraph (b) of this section.
(d) The mechanism must provide for payment of reasonable litigation
expenses of appointed counsel, which may include presumptive limits on
[[Page 11713]]
payment only if means are authorized for payment of necessary expenses
above such limits.
Sec. 26.23 Certification process.
(a) An appropriate State official may request in writing that the
Attorney General determine whether the State meets the requirements for
certification under Sec. 26.22.
(b) Upon receipt of a State's request for certification, the
Attorney General will make the request publicly available on the
Internet (including any supporting materials included in the request)
and publish a notice in the Federal Register--
(1) Indicating that the State has requested certification;
(2) Identifying the Internet address at which the public may view
the State's request for certification; and
(3) Soliciting public comment on the request.
(c) The State's request will be reviewed by the Attorney General.
The review will include consideration of timely public comments
received in response to the Federal Register notice under paragraph (b)
of this section. The certification will be published in the Federal
Register if certification is granted. The certification will include a
determination of the date the capital counsel mechanism qualifying the
State for certification was established.
(d) A certification by the Attorney General reflects the Attorney
General's determination that the State capital counsel mechanism
reviewed under paragraph (c) of this section satisfies 28 U.S.C.
chapter 154's requirements. A State may request a new certification by
the Attorney General to ensure the continued applicability of chapter
154 in cases in which State postconviction proceedings occur after a
change or alleged change in the State's certified capital counsel
mechanism. Changes in a State's capital counsel mechanism do not affect
the applicability of chapter 154 in any case in which a mechanism
certified by the Attorney General existed throughout State
postconviction proceedings in the case.
Dated: February 25, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-4800 Filed 3-2-11; 8:45 am]
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