[Federal Register Volume 77, Number 29 (Monday, February 13, 2012)]
[Proposed Rules]
[Pages 7559-7562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3293]

[[Page 7559]]



28 CFR Part 26

[Docket No. OJP (DOJ) 1540; AG Order No 3322-2012]
RIN 1121-AA77

Certification Process for State Capital Counsel Systems

AGENCY: Department of Justice.

ACTION: Supplemental notice of proposed rulemaking.


SUMMARY: Section 2265 of title 28, United States Code, instructs the 
Attorney General to promulgate regulations establishing a certification 
procedure for States seeking to qualify for the special Federal habeas 
corpus review provisions for capital cases under chapter 154 of title 
28. The benefits of chapter 154--including expedited timing and limits 
on the scope of Federal habeas review of State judgments--are available 
to States on the condition that they provide counsel to indigent 
capital defendants in State postconviction proceedings pursuant to 
mechanisms that satisfy certain statutory requirements. This 
supplemental notice of proposed rulemaking (supplemental notice) 
requests public comment concerning five changes that the Department is 
considering to a previously published proposed rule for the chapter 154 
certification procedure.

DATES: Comments must be submitted on or before March 14, 2012. Comments 
received by mail will be considered timely if they are 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 
supplemental notice at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Caroline T. Nguyen, Office of Legal 
Policy, (202) 514-4601 (not a toll-free number).

    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 a name and address) 
voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment. 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 
    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 


    Chapter 154 of title 28, United States Code, makes special 
expedited procedures available to a State respondent in Federal habeas 
corpus proceedings involving review of State capital judgments, and 
limits the scope of Federal court review of such 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) (2006). Section 2265(a)(1) provides that, if requested by an 
appropriate State official, the Attorney General must determine whether 
``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 whether the State ``provides 
standards of competency for the appointment of counsel in [such 
proceedings].'' Section 2265(b) directs the Attorney General to 
promulgate regulations to implement procedures for making the necessary 
determinations and certifying States accordingly.
    The Attorney General published a proposed rule for the chapter 154 
certification procedure in the Federal Register on March 3, 2011, at 76 
FR 11705. The comment period for the proposed rule closed on June 1, 
2011. The Department received approximately 30 comments concerning both 
the general approach and specific provisions of the proposed rule. In 
response to those comments, the Department is considering certain 
modifications to the proposed rule, including five modifications 
described in this supplemental notice.

Request for Comments

    This supplemental notice solicits public comment on five potential 
changes to the proposed rule published on March 3. Each of these five 
proposed changes derives from comments received in response to the 
publication of that proposed rule. The Department solicits additional 
public views to provide all interested parties, including those who did 
not previously comment, an opportunity to provide input on these 
specific possible changes. The specific changes under consideration are 
(1) modifying the proposed rule's first counsel competency standard, 
Sec.  26.22(b)(1), which sets as a benchmark five years of bar 
admission and three years of felony litigation experience, to 
substitute postconviction experience for felony litigation experience; 
(2) modifying the second counsel competency standard, Sec.  
26.22(b)(2), which incorporates as a benchmark certain provisions of 
the Innocence Protection Act of 2004, Public Law 108-405, Title IV, 
Sec.  421, 118 Stat. 2286, codified at 42 U.S.C. 14163(e)(1) and 
(2)(A), to incorporate as well other provisions of section 14163(e)(2), 
specifically, subparagraphs (B), (D), and (E); (3) specifying that a 
mechanism for providing competent counsel in postconviction proceedings 
must encompass a policy for the timely provision of counsel to satisfy 
chapter 154; (4) providing that the Attorney General will presumptively 
certify a mechanism that meets the standards set out in the rule; and 
(5) providing for periodic renewal of certifications.

[[Page 7560]]

    This supplemental notice is limited to solicitation of additional 
comment on the matters described herein. Commenters need not reiterate 
or resubmit comments in response to this supplemental notice that they 
previously submitted relating to these matters or other aspects of the 
proposed rule. All public comments submitted pursuant to the proposed 
rule published on March 3, 2011, and in response to this supplemental 
notice will be fully considered when the Department prepares the final 

Proposed Change 1: Postconviction Experience

    Section 26.22(b)(1) of the proposed rule provides that 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.'' 76 FR at 11712. The Department solicits 
comment on the suggestion to change this provision to set a standard of 
five years of bar admission and three years of postconviction 
litigation (instead of felony litigation) experience. In particular, 
the Department solicits comment on whether three years of 
postconviction litigation experience is an appropriate measure of 
competency in postconviction proceedings and whether more years, fewer 
years, or alternative measures would constitute a more appropriate 
    The benchmark in the proposed rule is based on 18 U.S.C. 3599, 
pertaining to appointment of counsel in Federal court proceedings in 
capital cases. That provision sets out a standard of three years of 
felony trial experience for appointments made before judgment and three 
years of felony appellate experience for appointments made after 
judgment. The proposed rule incorporates neither of these specialized 
experience standards, but instead sets a benchmark of three years of 
felony litigation experience of any sort. The Department is considering 
substituting for that benchmark three years of postconviction 
litigation experience as the form of experience most relevant and most 
necessary to the litigation of State postconviction petitions.
    In construing chapter 154, a number of courts have concluded that, 
given the complexity of postconviction law and procedure, a qualifying 
mechanism for the appointment of competent counsel should provide for 
counsel with specialized postconviction litigation experience. See, 
e.g., Colvin-El v. Nuth, No. Civ.A. AW 97-2520, 1998 WL 386403, at *6 
(D. Md. July 6, 1998) (``Given the extraordinarily complex body of law 
and procedure unique to post-conviction review, an attorney must, at 
minimum, have some experience in that area before he or she is deemed 
`competent.' ''). Similarly, the Judicial Conference of the United 
States has recognized the value and importance of specialized 
experience when confronting the complexity of postconviction 
representation and the risk of irremediable procedural default. See 
Judicial Conference of the United States, Committee on Defender 
Services, Subcommittee on Federal Death Penalty Cases, Federal Death 
Penalty Cases: Recommendations Concerning the Cost and Quality of 
Defense Representation 21 (May 1998) (recommending that appointing 
authorities ``consider the attorney's experience in federal post-
conviction proceedings and in capital post-conviction proceedings''); 
see also Jon B. Gould & Lisa Greenman, Report to the Committee on 
Defender Services Judicial Conference of the United States: Update on 
the Cost and Quality of Defense Representation in Federal Death Penalty 
Cases 88 (Sep. 2010) (noting the view of postconviction specialists 
that there is ``little time available for inexperienced counsel to 
`learn the ropes,' and no safety net if they fail'').
    At the same time, it is possible that some lawyers may be capable 
of providing competent counsel even without such postconviction 
experience. Accordingly, as in Sec.  26.22(b)(1) of the proposed rule, 
a modified version of the provision with a postconviction experience 
standard could continue to include an exception allowing appointment of 
other counsel whose background, knowledge, or experience would 
otherwise enable him or her to properly represent the defendant. Cf. 18 
U.S.C. 3599(d); Spears v. Stewart, 283 F.3d 992, 1011, 1013 (9th Cir. 
2002) (finding State competency standards generally requiring 
postconviction litigation experience, but allowing some exception, 
adequate under chapter 154); Ashmus v. Calderon, 123 F.3d 1199, 1208 
(9th Cir. 1997) (recognizing that ``habeas corpus law is complex and 
has many procedural pitfalls'' but concluding that it is not necessary 
under chapter 154 that every lawyer have postconviction experience), 
rev'd on other grounds, 523 U.S. 740 (1998).

Proposed Change 2: Innocence Protection Act (IPA)

    Section 26.22(b)(2) of the proposed rule provides that 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 ``meeting qualification standards established in 
conformity with 42 U.S.C. 14163(e)(1) [and] (2)(A).'' 76 FR at 11712. 
The Department solicits comments on the suggestion of modifying Sec.  
26.22(b)(2) in the proposed rule to incorporate not only section 
14163(e)(1) and (2)(A), but all of the subparagraphs of that section 
that bear directly on counsel qualifications--specifically, 
subparagraphs (2)(B), (D), and (E).
    Subparagraphs (B), (D), and (E) require maintenance of a roster of 
qualified attorneys; provision or approval of specialized training 
programs for attorneys representing defendants in capital cases; 
monitoring of the performance of attorneys who are appointed and their 
attendance at training programs to ensure continued competence; and 
removal from the roster of attorneys who fail to deliver effective 
representation or engage in unethical conduct. 42 U.S.C. 14163(e)(2). 
Those provisions are integral elements of the IPA's comprehensive 
approach to counsel qualifications. Under the modification now being 
considered by the Department, to the extent that the rule uses the IPA 
standard as a benchmark for counsel competency, it would incorporate 
all directly relevant elements of that Act.

Proposed Change 3: Timely Provision of Competent Counsel

    The Department solicits comments on a proposal to specify that a 
State capital counsel mechanism must encompass a policy for the timely 
provision of competent counsel in order to be certified as an adequate 
``mechanism for the appointment * * * of competent counsel in State 
postconviction proceedings'' under chapter 154. 28 U.S.C. 2265(1)(A). 
The Department recognizes that States should be given significant 
latitude in designing their capital counsel mechanisms and therefore 
does not propose to define timeliness in terms of a specific number of 
days or weeks within which counsel is to be provided. Instead, the 
Department is considering only clarification that the mechanism must 
provide for affording counsel to indigent capital defendants in State 
postconviction proceedings in a manner that is reasonably timely, in 
light of the statutes of limitations governing both State and Federal 
collateral review and the effort involved in the investigation, 
research, and filing of effective habeas petitions, to protect a 
petitioner's right to meaningful habeas review.

[[Page 7561]]

    Many comments raised the concern that the proposed rule does not 
address the timing of counsel appointment and asserted that such 
failure is particularly troubling in light of the expedited Federal 
habeas procedures under chapter 154. Section 2263, for example, 
generally requires the filing of a Federal habeas corpus petition 
within 180 days of the completion of direct State court review of the 
conviction and sentence, a period substantially shorter than in other 
Federal habeas cases. Compare 28 U.S.C. 2263(a) (180 days), with Sec.  
2444(d)(1) (one-year deadline); Sec.  2255(f) (same). (Section 2263 
also provides for tolling during the pendency of both a petition for 
certiorari to the Supreme Court (following direct review in State 
courts) and State collateral proceedings. Sec.  2263 (b).) And section 
2266 restricts the ability to amend a Federal habeas petition after it 
has been filed. Sec.  2266(b)(3)(B).
    The comments raise an important issue for consideration. Chapter 
154 involves a quid pro quo arrangement under which the right to 
representation by counsel is extended to State postconviction 
proceedings for capital defendants, and in return Federal habeas review 
is carried out with generally more limited time frames and scope 
following the State postconviction proceedings in which counsel has 
been made available. If a State capital counsel mechanism provided for 
the provision of counsel to represent indigent capital defendants only 
after the deadline for pursuing State postconviction proceedings had 
passed; or only after the expiration of section 2263's time limit for 
Federal habeas filing; or only after such delay that the time available 
for preparing for and pursuing either State or Federal postconviction 
review had been seriously eroded, then the mechanism would not appear 
to provide for appointment of postconviction counsel as required under 
chapter 154, even if the State mechanism otherwise tracked the 
appointment procedures set forth in Sec.  26.22(a) of the proposed 
rule. Since chapter 154's enactment in 1996, when Federal habeas courts 
were charged with evaluating the sufficiency of state mechanisms 
(amendments to the statute in 2006 transferred that function to the 
Attorney General), a number of courts have concluded that chapter 154 
required that the mechanism provide for timely appointment of counsel. 
See, e.g., Brown v. Puckett, No. 3:01-CV-197-D, 2003 WL 21018627, at *3 
(N.D. Miss. Mar. 12, 2003) (``The timely appointment of counsel at the 
conclusion of direct review is an essential requirement in the opt-in 
structure. Because the abbreviated 180-day statute of limitations 
begins to run immediately upon the conclusion of direct review, time is 
of the essence. Without a requirement for the timely appointment of 
counsel, the system is not in compliance.''); Ashmus v. Calderon, 31 F. 
Supp. 2d 1175, 1186-87 (N.D. Cal. 1998) (construing chapter 154 to 
require timely appointment in part because ``the legislative history is 
clear that actual and expeditious appointment [of counsel] was 
expected'' and ``effective and competent habeas representation is 
compromised by long delays''); Hill v. Butterworth, 941 F. Supp. 1129, 
1147 (N.D. Fla. 1996), rev'd on other grounds, 147 F.3d 1333 (11th Cir. 
1998) (``[T]he Court holds that any offer of counsel pursuant to 
Section 2261 must be a meaningful offer. That is, counsel must be 
immediately appointed after a capital defendant accepts the state's 
offer of post-conviction counsel.''). Accordingly, the Department is 
considering specifying in the final rule that a mechanism, to be 
certified under section 2265, must encompass a policy for the timely 
provision of competent counsel.

Proposed Change 4: Effect on Certification of Compliance With 

    The Department is considering amending Sec.  26.22(b) and (c) of 
the proposed rule to state that the Attorney General will 
``presumptively'' certify that a State has established a sufficient 
mechanism for the appointment of competent counsel if he determines 
that the mechanism satisfies the specific standards for competency and 
compensation set out in the remainder of those paragraphs. So revised, 
the rule would continue to provide guidance to the States regarding 
approaches that are likely to be sufficient to warrant certification, 
while also allowing the Attorney General to consider whether the 
presumption that the standards described in the rule are adequate may 
be overcome in light of unusual circumstances presented by a particular 
State system.
    Many commenters expressed concern that under the proposed rule, the 
Attorney General must certify a State's mechanism so long as it meets 
competence and compensation benchmarks identified in the proposed rule, 
even if it can be shown that in the context of the State in which it 
operates, the mechanism is not adequate. That concern is separate from 
criticism that the proposed rule fails to provide for oversight of a 
State's compliance with its own mechanism over time; the Department 
remains of the view that whether a State has complied with its 
mechanism in an individual case is a question the statute assigns to 
the Federal habeas courts, not to the Attorney General. See 28 U.S.C. 
2261(b)(2). The distinct concern at issue here arises from the 
seemingly categorical statement in the proposed rule that the 
``Attorney General will certify'' a State's mechanism upon 
determination that it satisfies a relevant benchmark, see 76 FR at 
11712 (emphasis added), which does not appear to allow for any 
additional evaluation by the Attorney General of whether the mechanism, 
as implemented in the particular State, is in fact reasonably likely to 
lead to the timely provision of competent counsel to State habeas 
    The comments raise an issue that should be considered. The 
Department continues to believe that compliance with the competence and 
compensation benchmarks identified in the proposed rule, subject to 
modifications discussed herein, and the proposed specification that a 
mechanism include a policy on timeliness, are likely to result in the 
timely provision of competent counsel. But the comments seemed 
persuasive that it may not be possible to predict with certainty that 
these benchmarks will be adequate in the context of every possible 
State capital counsel system. For example, in the context of a 
particular State and its distinctive market conditions for legal 
services, it is conceivable that what normally should be sufficient 
compensation may not in fact be reasonably likely to make competent 
lawyers available for timely provision to capital petitioners in State 
habeas proceedings. Modification of the rule as indicated would afford 
the Attorney General latitude to consider such circumstances and other 
similar State-specific circumstances in making certification decisions. 
See Memorandum for the Attorney General from David J. Barron, Acting 
Assistant Attorney General, Office of Legal Counsel, Re: The Attorney 
General's Authority in Certifying Whether a State Has Satisfied the 
Requirements for Appointment of Competent Counsel for Purposes of 
Capital Conviction Review Proceedings at 2 (Dec. 16, 2009) (``[T]he 
statutory provisions in question may reasonably be construed to permit 
you to evaluate a State's appointment mechanism--including the level of 
attorney compensation--to assess whether it is adequate for purposes of 
ensuring that the state mechanism will result in the appointment of 
competent counsel.'').

[[Page 7562]]

Proposed Change 5: Renewal of Certifications

    The Department solicits comments on a proposal to specify that a 
certification under chapter 154 is effective for a specified term of 
years. This proposal is responsive to many comments pointing out that 
changed circumstances may affect whether a once-certified mechanism 
continues to be adequate for purposes of ensuring the availability for 
appointment of competent counsel. At the time a State applies for 
certification, for example, its provisions authorizing compensation at 
a specified hourly rate may be sufficient to achieve this objective. 
But after the passage of years, that may no longer be the case in light 
of inflation or other changed economic circumstances. Cf. Durable Mfg. 
Co. v. United States Dep't of Labor, 578 F.3d 497, 501-02 (7th Cir. 
2009) (upholding time limitation of validity of labor certificates in 
light of possible subsequent changes in economic circumstances 
affecting consistency with statutory requirements and objectives). 
Similarly, changes in various State policies that may affect the 
mechanism's operation, or new statutory provisions or legal precedent 
relating to attorney competence, compensation, or reasonable litigation 
expenses, may bear on the continued adequacy of the mechanism. 
Providing some limitation on the lifespan of certifications and 
requiring renewal of certifications would allow questions regarding 
continued compliance with chapter 154 to be reexamined at regular 
intervals, each time with increased information about a State's actual 
experience with its mechanism, rather than assuming that a once-
compliant State system is compliant indefinitely.
    At the same time, it is possible that overly stringent limitations 
on the duration of certifications could unduly burden States and 
disserve chapter 154's objectives by discouraging States from 
undertaking the effort to establish compliant mechanisms and seek their 
certification. Balancing the need for examination of continued 
compliance with the need to provide States with a substantial period of 
certainty, the Department is considering a term of five years for 
certifications, which would begin to run only after completion of both 
the certification process by the Attorney General and any related 
judicial review. See 28 U.S.C. 2265(c) (providing for DC Circuit review 
of certification decisions). The final rule could also provide that if 
a State requests renewal of the certification at or before the end of 
the five-year period, the initial certification would remain effective 
until completion of the renewal process and any related judicial 
review. Thus, a State that achieves certification of its mechanism 
would enjoy the uninterrupted benefits of chapter 154 for the full term 
of five years. The Department seeks comment on the merits and substance 
of a renewal requirement, including whether five years is an 
appropriate term of years during which a certification should be 
effective, or whether that term of years should be longer or shorter.

Regulatory Certifications

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General 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.

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 the distribution of power and responsibilities among the 
various levels of government. It only requests public comment on 
possible changes in a previously published proposed rule regarding the 
certification procedure under chapter 154 of title 28, 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. It only requests 
public comment on possible changes in a previously published proposed 
rule regarding the certification procedure under chapter 154 of title 
28, 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.

    Dated: February 6, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-3293 Filed 2-10-12; 8:45 am]