[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3558 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 3558

          To provide Federal penalties for drive-by shootings.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 19, 1993

  Mr. Franks of Connecticut introduced the following bill; which was 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
          To provide Federal penalties for drive-by shootings.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. DRIVE-BY SHOOTING IN CONNECTION WITH MAJOR DRUG OFFENSE.

    (a) Offense.--
            (1) In general.--Chapter 2 of title 18, United States Code, 
        is amended by adding at the end the following new section:
``Sec. 36. Drive-by shooting
    ``(a) Definition.--In this section, `major drug offense' means--
            ``(1) a continuing criminal enterprise punishable under 
        section 403(c) of the Controlled Substances Act (21 U.S.C. 
        848(c));
            ``(2) a conspiracy to distribute controlled substances 
        punishable under section 406 of the Controlled Substances Act 
        (21 U.S.C. 846) or section 1013 of the Controlled Substances 
        Import and Export Control Act (21 U.S.C. 963); and
            ``(3) an offense involving large quantities of drugs and 
        punishable under section 401(b)(1)(A) of the Controlled 
        Substances Act (21 U.S.C. 841(b)(1)(A)) or section 1010(b)(1) 
        of the Controlled Substances Import and Export Act (21 U.S.C. 
        960(b)(1)).
    ``(b) Offenses and Penalties.--
            ``(1) A person who, in furtherance of or to avoid detection 
        of a major drug offense, with the intent to intimidate, harass, 
        injure, or maim another person, fires a weapon into a group of 
        2 or more persons shall be imprisoned not more than 25 years, 
        fined under this title, or both.
            ``(2) A person who, in furtherance of or to avoid detection 
        of a major drug offense, with the intent to intimidate, harass, 
        injure, or maim another person, fires a weapon into a group of 
        2 or more persons and thereby causes the death of any person 
        shall--
                    ``(A) if the killing is a first degree murder (as 
                defined in section 1111(a)), be punished by death or 
                imprisonment for any term of years or for life, fined 
                under this title, or both: or
                    ``(B) if the killing is a murder other than a first 
                degree murder (as defined in section 1111(a)), be fined 
                under this title, imprisoned for any term of years or 
                for life, or both.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 2 of title 18, United States Code, is 
        amended by adding at the end the following new item:

``36. Drive-by shooting.''.
    (b) Death Penalty Procedures.--
            (1) Addition of chapter to title 18, united states code.--
        Title 18, United States Code, is amended by inserting after 
        chapter 227 the following new chapter:

                ``CHAPTER 228--DEATH PENALTY PROCEDURES

``Sec.
``3591. Sentence of death.
``3592. Factors to be considered in determining whether a sentence of 
                            death is justified.
``3593. Special hearing to determine whether a sentence of death is 
                            justified.
``3594. Imposition of a sentence of death.
``3595. Review of a sentence of death.
``3596. Implementation of a sentence of death.
``3597. Use of State facilities.
``3598. Appointment of counsel.
``3599. Collateral attack on judgment imposing sentence of death.
``Sec. 3591. Sentence of death
    ``A defendant who has been found guilty of an offense under section 
36, if the defendant, as determined beyond a reasonable doubt at a 
hearing under section 3593, caused the death of a person intentionally, 
knowingly, or through recklessness manifesting extreme indifference to 
human life, or caused the death of a person through the intentional 
infliction of serious bodily injury, shall be sentenced to death if, 
after consideration of the factors set forth in section 3592 in the 
course of a hearing held pursuant to section 3593, it is determined 
that imposition of a sentence of death is justified, except that no 
person may be sentenced to death who was less than 18 years of age at 
the time of the offense.
``Sec. 3592. Factors to be considered in determining whether a sentence 
              of death is justified
    ``(a) Mitigating Factors.--In determining whether a sentence of 
death is justified for any offense, the jury, or if there is no jury, 
the court, shall consider each of the following mitigating factors and 
determine which, if any, exist:
            ``(1) Mental capacity.--The defendant's mental capacity to 
        appreciate the wrongfulness of the defendant's conduct or to 
        conform the defendant's conduct to the requirements of law was 
        significantly impaired, regardless of whether the capacity was 
        so impaired as to constitute a defense to the charge.
            ``(2) Duress.--The defendant was under unusual and 
        substantial duress, regardless of whether the duress was of 
        such a degree as to constitute a defense to the charge.
            ``(3) Participation in offense minor.--The defendant is 
        punishable as a principal in the offense, which was committed 
        by another, but the defendant's participation was relatively 
        minor, regardless of whether the participation was so minor as 
        to constitute a defense to the charge.
The jury, or if there is no jury, the court, shall consider whether any 
other aspect of the defendant's character or record or any other 
circumstances of the offense that the defendant may proffer as a 
mitigating factor exists.
    ``(b) Aggravating Factors for Espionage and Treason.--In 
determining whether a sentence of death is justified for an offense 
described in section 3591(1), the jury, or if there is no jury, the 
court, shall consider each of the following aggravating factors and 
determine which, if any, exist:
            ``(1) Previous espionage or treason conviction.--The 
        defendant has previously been convicted of another offense 
        involving espionage or treason for which a sentence of life 
        imprisonment or death was authorized by statute.
            ``(2) Risk of substantial danger to national security.--In 
        the commission of the offense the defendant knowingly created a 
        grave risk to the national security.
            ``(3) Risk of death to another.--In the commission of the 
        offense the defendant knowingly created a grave risk of death 
        to another person.
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor exists.
    ``(c) Aggravating Factors for Homicide and for Attempted Murder of 
the President.--In determining whether a sentence of death is justified 
for an offense described in section 3591 (2) or (6), the jury, or if 
there is no jury, the court, shall consider each of the following 
aggravating factors and determine which, if any, exist:
            ``(1) Death occurred during commission of another crime.--
        The death occurred during the commission or attempted 
        commission of, or during the immediate flight from the 
        commission of, an offense under section 751 (prisoners in 
        custody of institution or officer), section 794 (gathering or 
        delivering defense information to aid foreign government), 
        section 844(d) (transportation of explosives in interstate 
        commerce for certain purposes), section 844(f) (destruction of 
        Government property by explosives), section 1118 (prisoners 
        serving life term), section 1201 (kidnapping), or section 2381 
        (treason) of this title, section 1826 of title 28 (persons in 
        custody as recalcitrant witnesses or hospitalized following a 
        finding of not guilty only by reason of insanity), or section 
        902 (i) or (n) of the Federal Aviation Act of 1958 (49 U.S.C. 
        1472 (i) and (n) (aircraft piracy)).
            ``(2) Involvement of firearm or previous conviction of 
        violent felony involving firearm.--The defendant--
                    ``(A) during and in relation to the commission of 
                the offense or in escaping apprehension used or 
                possessed a firearm (as defined in section 921); or
                    ``(B) has previously been convicted of a Federal or 
                State offense punishable by a term of imprisonment of 
                more than 1 year, involving the use or attempted or 
                threatened use of a firearm (as defined in section 921) 
                against another person.
            ``(3) Previous conviction of offense for which a sentence 
        of death or life imprisonment was authorized.--The defendant 
        has previously been convicted of another Federal or State 
        offense resulting in the death of a person, for which a 
        sentence of life imprisonment or death was authorized by 
        statute.
            ``(4) Previous conviction of other serious offenses.--The 
        defendant has previously been convicted of 2 or more Federal or 
        State offenses, each punishable by a term of imprisonment of 
        more than 1 year, committed on different occasions, involving 
        the importation, manufacture, or distribution of a controlled 
        substance (as defined in section 102 of the Controlled 
        Substances Act (21 U.S.C. 802)) or the infliction of, or 
        attempted infliction of, serious bodily injury or death upon 
        another person.
            ``(5) Grave risk of death to additional persons.--The 
        defendant, in the commission of the offense or in escaping 
        apprehension, knowingly created a grave risk of death to 1 or 
        more persons in addition to the victim of the offense.
            ``(6) Heinous, cruel, or depraved manner of commission.--
        The defendant committed the offense in an especially heinous, 
        cruel, or depraved manner in that it involved torture or 
        serious physical abuse to the victim.
            ``(7) Procurement of offense by payment.--The defendant 
        procured the commission of the offense by payment, or promise 
        of payment, of anything of pecuniary value.
            ``(8) Commission of the offense for pecuniary gain.--The 
        defendant committed the offense as consideration for the 
        receipt, or in the expectation of the receipt, of anything of 
        pecuniary value.
            ``(9) Substantial planning and premeditation.--The 
        defendant committed the offense after substantial planning and 
        premeditation.
            ``(10) Vulnerability of victim.--The victim was 
        particularly vulnerable due to old age, youth, or infirmity.
            ``(11) Type of victim.--(A) The defendant committed the 
        offense against--
                    ``(i) the President of the United States, the 
                President-elect, the Vice President, the Vice 
                President-elect, the Vice President-designate, or, if 
                there is no Vice President, the officer next in order 
                of succession to the office of the President of the 
                United States, or any person who is acting as President 
                under the Constitution and laws of the United States;
                    ``(ii) a chief of state, head of government, or the 
                political equivalent, of a foreign nation;
                    ``(iii) a foreign official described in section 
                1116(b)(3)(A), if the official is in the United States 
                on official business; or
                    ``(iv) a public servant who is a Federal judge, a 
                Federal law enforcement officer, an employee (including 
                a volunteer or contract employee) of a Federal prison, 
                or an official of the Federal Bureau of Prisons--
                            ``(I) while the public servant is engaged 
                        in the performance of the public servant's 
                        official duties;
                            ``(II) because of the performance of the 
                        public servant's official duties; or
                            ``(III) because of the public servant's 
                        status as a public servant.
            ``(B) For purposes of this paragraph--
                    ``(i) the terms `President-elect' and `Vice 
                President-elect' mean persons that are the apparent 
                successful candidates for the offices of President and 
                Vice President, respectively, as ascertained from the 
                results of the general elections held to determine the 
                electors of President and Vice President in accordance 
                with sections 1 and 2 of title 3, United States Code;
                    ``(ii) the term `Federal law enforcement officer' 
                means a public servant authorized by law or by a 
                government agency or Congress to conduct or engage in 
                the prevention, investigation, or prosecution of an 
                offense;
                    ``(iii) the term `Federal prison' means a Federal 
                correctional, detention, or penal facility, Federal 
                community treatment center, or Federal halfway house, 
                or any such prison operated under contract with the 
                Federal Government; and
                    ``(iv) the term `Federal judge' means a judicial 
                officer of the United States (including a justice of 
                the Supreme Court and a magistrate).
The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor exists.
``Sec. 3593. Special hearing to determine whether a sentence of death 
              is justified
    ``(a) Notice by the Government.--When the Government intends to 
seek the death penalty for an offense described in section 3591, the 
attorney for the Government, a reasonable time before the trial, or 
before acceptance by the court of a plea of guilty, or at such time 
thereafter as the court may permit upon a showing of good cause, shall 
sign and file with the court, and serve on the defendant, a notice--
            ``(1) that the Government in the event of conviction will 
        seek the sentence of death; and
            ``(2) setting forth the aggravating factor or factors 
        enumerated in section 3592 and any other aggravating factor not 
        specifically enumerated in section 3592, that the Government, 
        if the defendant is convicted, will seek to prove as the basis 
        for the death penalty.
The court may permit the attorney for the Government to amend the 
notice upon a showing of good cause.
    ``(b) Hearing Before a Court or Jury.--When the attorney for the 
Government has filed a notice as required under subsection (a) of this 
section and the defendant is found guilty of an offense described in 
section 3591, the judge who presided at the trial or before whom the 
guilty plea was entered, or another judge if that judge is unavailable, 
shall conduct a separate sentencing hearing to determine the punishment 
to be imposed. Before such a hearing, no presentence report shall be 
prepared by the United States Probation Service, notwithstanding the 
Federal Rules of Criminal Procedure. The hearing shall be conducted--
            ``(1) before the jury that determined the defendant's 
        guilt;
            ``(2) before a jury impaneled for the purpose of the 
        hearing if--
                    ``(A) the defendant was convicted upon a plea of 
                guilty;
                    ``(B) the defendant was convicted after a trial 
                before the court sitting without a jury;
                    ``(C) the jury that determined the defendant's 
                guilt was discharged for good cause; or
                    ``(D) after initial imposition of a sentence under 
                this section, reconsideration of the sentence under the 
                section is necessary; or
            ``(3) before the court alone, upon motion of the defendant 
        and with the approval of the attorney for the Government.
A jury impaneled pursuant to paragraph (2) shall consist of 12 members, 
unless, at any time before the conclusion of the hearing, the parties 
stipulate, with the approval of the court, that it shall consist of a 
lesser number.
    ``(c) Proof of Mitigating and Aggravating Factors.--At the hearing, 
information may be presented concerning--
            ``(1) any matter relating to any mitigating factor listed 
        in section 3592 and any other mitigating factor; and
            ``(2) any matter relating to any aggravating factor listed 
        in section 3592 for which notice has been provided under 
        subsection (a)(2) and (if information is presented relating to 
        such a listed factor) any other aggravating factor for which 
        notice has been so provided.
Information presented may include the trial transcript and exhibits. 
Any other information relevant to such mitigating or aggravating 
factors may be presented by either the Government or the defendant, 
regardless of its admissibility under the rules governing admission of 
evidence at criminal trials, except that information may be excluded if 
its probative value is outweighed by the danger of creating unfair 
prejudice, confusing the issues, or misleading the jury. The Government 
and the defendant shall be permitted to rebut any information received 
at the hearing and shall be given fair opportunity to present argument 
as to the adequacy of the information to establish the existence of any 
aggravating or mitigating factor and as to the appropriateness in that 
case of imposing a sentence of death. The Government shall open the 
argument. The defendant shall be permitted to reply. The Government 
shall then be permitted to reply in rebuttal. The burden of 
establishing the existence of an aggravating factor is on the 
Government, and it is not satisfied unless the existence of such a 
factor is established beyond a reasonable doubt. The burden of 
establishing the existence of any mitigating factor is on the 
defendant, and it is not satisfied unless the existence of such a 
factor is established by a preponderance of the evidence.
    ``(d) Return of Special Findings.--The jury, or if there is no 
jury, the court, shall consider all the information received during the 
hearing. It shall return special findings identifying any aggravating 
factor or factors set forth in section 3592 found to exist and any 
other aggravating factor for which notice has been provided under 
subsection (a) found to exist. A finding with respect to a mitigating 
factor may be made by 1 or more members of the jury, and any member of 
the jury who finds the existence of a mitigating factor may consider 
such factor established for purposes of this section regardless of the 
number of jurors who concur that the factor has been established. A 
finding with respect to any aggravating factor must be unanimous. If no 
aggravating factor set forth in section 3592 is found to exist, the 
court shall impose a sentence other than death authorized by law.
    ``(e) Return of a Finding Concerning a Sentence of Death.--If, in 
the case of--
            ``(1) an offense described in section 3591(1), an 
        aggravating factor required to be considered under section 
        3592(b) is found to exist; or
            ``(2) an offense described in section 3591 (2) or (6), an 
        aggravating factor required to be considered under section 
        3592(c) is found to exist,
the jury, or if there is no jury, the court, shall then consider 
whether the aggravating factor or factors found to exist outweigh any 
mitigating factor or factors. The jury, or if there is no jury, the 
court, shall recommend a sentence of death if it unanimously finds at 
least 1 aggravating factor and no mitigating factor or if it finds 1 or 
more aggravating factors which outweigh any mitigating factors. In any 
other case, it shall not recommend a sentence of death. The jury shall 
be instructed that it must avoid any influence of sympathy, sentiment, 
passion, prejudice, or other arbitrary factors in its decision and 
should make such a recommendation as the information warrants.
    ``(f) Special Precaution To Ensure Against Discrimination.--In a 
hearing held before a jury, the court, before the return of a finding 
under subsection (e), shall instruct the jury that, in considering 
whether a sentence of death is justified, it shall not consider the 
race, color, religious beliefs, national origin, or sex of the 
defendant or of any victim and that the jury is not to recommend a 
sentence of death unless it has concluded that it would recommend a 
sentence of death for the crime in question no matter what the race, 
color, religious beliefs, national origin, or sex of the defendant or 
of any victim may be. The jury, upon return of a finding under 
subsection (e), shall also return to the court a certificate, signed by 
each juror, that consideration of the race, color, religious beliefs, 
national origin, or sex of the defendant or any victim was not involved 
in reaching the juror's individual decision and that the individual 
juror would have made the same recommendation regarding a sentence for 
the crime in question no matter what the race, color, religious 
beliefs, national origin, or sex of the defendant or any victim may be.
``Sec. 3594. Imposition of a sentence of death
    ``Upon the recommendation under section 3593(e), that a sentence of 
death be imposed, the court shall sentence the defendant to death. 
Otherwise the court shall impose a sentence, other than death, 
authorized by law. Notwithstanding any other law, if the maximum term 
of imprisonment for the offense is life imprisonment, the court may 
impose a sentence of life imprisonment without the possibility of 
release or furlough.
``Sec. 3595. Review of a sentence of death
    ``(a) Appeal.--In a case in which a sentence of death is imposed, 
the sentence shall be subject to review by the court of appeals upon 
appeal by the defendant. Notice of appeal of the sentence must be filed 
within the time specified for the filing of a notice of appeal of the 
judgment of conviction. An appeal of the sentence under this section 
may be consolidated with an appeal of the judgment of conviction and 
shall have priority over all other cases.
    ``(b) Review.--The court of appeals shall review the entire record 
in the case, including--
            ``(1) the evidence submitted during the trial;
            ``(2) the information submitted during the sentencing 
        hearing;
            ``(3) the procedures employed in the sentencing hearing; 
        and
            ``(4) the special findings returned under section 3593(d).
    ``(c) Decision and Disposition.--
            ``(1) If the court of appeals determines that--
                    ``(A) the sentence of death was not imposed under 
                the influence of passion, prejudice, or any other 
                arbitrary factor; and
                    ``(B) the evidence and information support the 
                special findings of the existence of an aggravating 
                factor or factors,
        it shall affirm the sentence.
            ``(2) In any other case, the court of appeals shall remand 
        the case for reconsideration under section 3593 or for 
        imposition of another authorized sentence as appropriate.
            ``(3) The court of appeals shall state in writing the 
        reasons for its disposition of an appeal of sentence of death 
        under this section.
``Sec. 3596. Implementation of a sentence of death
    ``(a) In General.--A person who has been sentenced to death 
pursuant to this chapter shall be committed to the custody of the 
Attorney General until exhaustion of the procedures for appeal of the 
judgment of conviction and for review of the sentence. When the 
sentence is to be implemented, the Attorney General shall release the 
person sentenced to death to the custody of a United States marshal, 
who shall supervise implementation of the sentence in the manner 
prescribed by the law of the State in which the sentence is imposed. If 
the law of that State does not provide for implementation of a sentence 
of death, the court shall designate another State, the law of which 
does so provide, and the sentence shall be implemented in the manner 
prescribed by that law.
    ``(b) Impaired Mental Capacity, Age, or Pregnancy.--A sentence of 
death shall not be carried out upon a person who is under 18 years of 
age at the time the crime was committed. A sentence of death shall not 
be carried out upon a person who is mentally retarded. A sentence of 
death shall not be carried out upon a person who, as a result of mental 
disability--
            ``(1) cannot understand the nature of the pending 
        proceedings, what the person was tried for, the reason for the 
        punishment, or the nature of the punishment; or
            ``(2) lacks the capacity to recognize or understand facts 
        that would make the punishment unjust or unlawful or lacks the 
        ability to convey such information to counsel or to the court.
A sentence of death shall not be carried out upon a woman while she is 
pregnant.
    ``(c) Employees May Decline To Participate.--No employee of any 
State department of corrections or the Federal Bureau of Prisons and no 
employee providing services to that department or bureau under contract 
shall be required, as a condition of that employment or contractual 
obligation, to be in attendance at or to participate in any execution 
carried out under this section, if such participation is contrary to 
the moral or religious convictions of the employee. For purposes of 
this subsection, the term `participate in any execution' includes 
personal preparation of the condemned individual and the apparatus used 
for the execution, and supervision of the activities of other personnel 
in carrying out such activities.
``Sec. 3597. Use of State facilities
    ``A United States marshal charged with supervising the 
implementation of a sentence of death may use appropriate State or 
local facilities for the purpose, may use the services of an 
appropriate State or local official or of a person such as an official 
employed for the purpose, and shall pay the costs thereof in an amount 
approved by the Attorney General.
``Sec. 3598. Appointment of counsel
    ``(a) Federal Capital Cases.--
            ``(1) Representation of indigent defendants.--
        Notwithstanding any other law, this subsection shall govern the 
        appointment of counsel for a defendant against whom a sentence 
        of death is sought, or on whom a sentence of death has been 
        imposed, for an offense against the United States, when the 
        defendant is or becomes financially unable to obtain adequate 
        representation. Such a defendant shall be entitled to 
        appointment of counsel from the commencement of trial 
        proceedings until 1 of the conditions specified in section 
        3599(b) has occurred.
            ``(2) Representation before finality of judgment.--A 
        defendant within the scope of this subsection shall have 
        counsel appointed for trial representation as provided in 
        section 3005. At least 1 counsel so appointed shall continue to 
        represent the defendant until the conclusion of direct review 
        of the judgment, unless replaced by the court with other 
        qualified counsel.
            ``(3) Representation after finality of judgment.--When a 
        judgment imposing a sentence of death has become final through 
        affirmance by the Supreme Court on direct review, denial of 
        certiorari by the Supreme Court on direct review, or expiration 
        of the time for seeking direct review in the court of appeals 
        or the Supreme Court, the Government shall promptly notify the 
        district court that imposed the sentence. Within 10 days after 
        receipt of the notice, the district court shall proceed to make 
        a determination whether the defendant is eligible under this 
        subsection for appointment of counsel for subsequent 
        proceedings. On the basis of the determination, the court shall 
        issue an order--
                    ``(A) appointing 1 or more counsel to represent the 
                defendant upon a finding that the defendant is 
                financially unable to obtain adequate representation 
                and wishes to have counsel appointed or is unable 
                competently to decide whether to accept or reject 
                appointment of counsel;
                    ``(B) finding, after a hearing if necessary, that 
                the defendant rejected appointment of counsel and made 
                the decision with an understanding of its legal 
                consequences; or
                    ``(C) denying the appointment of counsel upon a 
                finding that the defendant is financially able to 
                obtain adequate representation. Counsel appointed 
                pursuant to this paragraph shall be different from the 
                counsel who represented the defendant at trial and on 
                direct review unless the defendant and counsel request 
                a continuation or renewal of the earlier 
                representation.
            ``(4) Standards for competence of counsel.--In relation to 
        a defendant who is entitled to appointment of counsel under 
        this subsection, at least 1 counsel appointed for trial 
        representation must have been admitted to the bar for at least 
        5 years and have at least 3 years of experience in the trial of 
        felony cases in Federal district court. If new counsel is 
        appointed after judgment, at least one counsel so appointed 
        must have been admitted to the bar for at least 5 years and 
        have at least 3 years of experience in the litigation of felony 
        cases in the Federal courts of appeals or the Supreme Court. 
        The court, for good cause, may appoint counsel who does not 
        meet these standards, but whose background, knowledge, or 
        experience would otherwise enable counsel to properly represent 
        the defendant, with due consideration of the seriousness of the 
        penalty and the nature of the litigation.
            ``(5) Applicability of criminal justice act.--Except as 
        otherwise provided in this subsection, section 3006A shall 
        apply to appointments under this subsection.
            ``(6) Claims of ineffectiveness of counsel.--The 
        ineffectiveness or incompetence of counsel during proceedings 
        on a motion under section 2255 of title 28 in a capital case 
        shall not be a ground for relief from the judgment or sentence 
        in any proceeding. The limitation in the preceding sentence 
        shall not preclude the appointment of different counsel at any 
        stage of the proceedings.
    ``(b) State Capital Cases.--The laws of the United States shall not 
be construed to impose any requirement with respect to the appointment 
of counsel in any proceeding in a State court or other State proceeding 
in a capital case, other than any requirement imposed by the 
Constitution of the United States. In a proceeding under section 2254 
of title 28 relating to a State capital case, or any subsequent 
proceeding on review, appointment of counsel for a petitioner who is or 
becomes financially unable to afford counsel shall be in the discretion 
of the court, except as provided by a rule promulgated by the Supreme 
Court pursuant to statutory authority. Such appointment of counsel 
shall be governed by section 3006A.
``Sec. 3599. Collateral attack on judgment imposing sentence of death
    ``(a) Time for Making Section 2255 Motion.--In a case in which a 
sentence of death has been imposed and the judgment has become final 
under section 3598(a)(3), a motion in the case under section 2255 of 
title 28 shall be filed within 90 days after the issuance of the order 
relating to appointment of counsel under section 3598(a)(3). The court 
in which the motion is filed, for good cause, may extend the time for 
filing for a period not exceeding 60 days. A motion described in this 
section shall have priority over all noncapital matters in the district 
court and in the court of appeals on review of the district court's 
decision.
    ``(b) Stay of Execution.--The execution of a sentence of death 
shall be stayed in the course of direct review of the judgment and 
during the litigation of an initial motion in the case under section 
2255 of title 28. The stay shall run continuously following imposition 
of the sentence and shall expire if--
            ``(1) the defendant fails to file a motion under section 
        2255 of title 28, within the time specified in subsection (a) 
        or fails to make a timely application for court of appeals 
        review following the denial of such a motion by a district 
        court;
            ``(2) upon completion of district court and court of 
        appeals review under section 2255 of title 28, the motion under 
        that section is denied--
                    ``(A) the time for filing a petition for certiorari 
                has expired and no petition has been filed;
                    ``(B) a timely petition for certiorari was filed 
                and the Supreme Court denied the petition; or
                    ``(C) a timely petition for certiorari was filed 
                and upon consideration of the case, the Supreme Court 
                disposed of it in a manner that left the capital 
                sentence undisturbed; or
            ``(3) before a district court, in the presence of counsel 
        and after having been advised of the consequences of the 
        decision, the defendant waives the right to file a motion under 
        section 2255 of title 28.
    ``(c) Finality of the Decision on Review.--If 1 of the conditions 
specified in subsection (b) has occurred, no court shall have the 
authority to enter a stay of execution or grant relief in the case 
unless--
            ``(1) the basis for the stay and request for relief is a 
        claim not presented in earlier proceedings;
            ``(2) the failure to raise the claim is--
                    ``(A) the result of governmental 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 in earlier 
                proceedings; and
            ``(3) the facts underlying the claim would be sufficient, 
        if proven, to undermine the court's confidence in the 
        determination of guilt on the offense or offenses for which the 
        death penalty was imposed.''.
            (2) Clerical Amendment.--The table of parts at the 
        beginning of part II of title 18, United States Code, is 
        amended by inserting after the item relating to chapter 227 the 
        following new item:

``228. Death penalty procedures.............................    3591''.

                                 <all>

HR 3558 IH----2