[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 248 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 248

To establish constitutional procedures for the imposition of the death 
                     penalty for terrorist murders.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             January 27 (legislative day, January 5), 1993

  Mr. Specter introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To establish constitutional procedures for the imposition of the death 
                     penalty for terrorist murders.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Terrorist Death Penalty Act of 
1993''.

SEC. 2. DEATH PENALTY FOR TERRORIST ACTS.

    (a) Offense.--Paragraph (1) of subsection 2331(a) of title 18 of 
the United States Code is amended to read as follows:
            ``(1)(A) if the killing is a first degree murder as defined 
        in section 1111(a) of this title, be punished by death or 
        imprisonment for any term of years or for life, or be fined 
        under this title, or both; and
            ``(B) if the killing is a murder other than a first degree 
        murder as defined in section 1111(a) of this title, be fined 
        under this title or imprisoned for any term of years or for 
        life, or both so fined and so imprisoned;''.
    (b) Death Penalty.--Section 2331 of title 18, United States Code, 
is amended by adding at the end thereof the following:
    ``(f) Death Penalty.--
            ``(1) Sentence of death.--A defendant who has been found 
        guilty of an offense under subsection (a)(1)(A), if the 
        defendant, as determined beyond a reasonable doubt at a hearing 
        under paragraph (3) either--
                    ``(A) intentionally killed the victim;
                    ``(B) intentionally participated in an act, 
                contemplating that the life of a person would be taken 
                or intending that lethal force would be used in 
                connection with a person, other than one of the 
                participants in the offense, and the victim died as a 
                direct result of the act; or
                    ``(C) acting with reckless disregard for human 
                life, engaged or substantially participated in conduct 
                which the defendant knew would create a grave risk of 
                death to another person or persons and death resulted 
                from such conduct,
shall be sentenced to death if, after consideration of the factors set 
forth in paragraph (2) in the course of a hearing held under paragraph 
(3), 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.
            ``(2) 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:
                            ``(i) 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.
                            ``(ii) 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.
                            ``(iii) Participation in offense minor.--
                        The defendant is punishable as a principal (as 
                        defined in section 2 of title 18 of the United 
                        States Code) 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 homicide.--In 
                determining whether a sentence of death is justified 
                for an offense described in paragraph (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:
                            ``(i) 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 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, as amended 
                        (49 U.S.C. 1472 (i) or (n) (aircraft piracy)).
                            ``(ii) Involvement of firearm or previous 
                        conviction of violent felony involving 
                        firearm.--The defendant--
                                    ``(I) during and in relation to the 
                                commission of the offense or in 
                                escaping apprehension used or possessed 
                                a firearm as defined in section 921 of 
                                this title; or
                                    ``(II) has previously been 
                                convicted of a Federal or State offense 
                                punishable by a term of imprisonment of 
                                more than one year, involving the use 
                                or attempted or threatened use of a 
                                firearm, as defined in section 921 of 
                                this title, against another person.
                            ``(iii) 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.
                            ``(iv) 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 one 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.
                            ``(v) 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 one 
                        or more persons in addition to the victim of 
                        the offense.
                            ``(vi) 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.
                            ``(vii) Procurement of offense by 
                        payment.--The defendant procured the commission 
                        of the offense by payment, or promise of 
                        payment, of anything of pecuniary value.
                            ``(viii) 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.
                            ``(ix) Substantial planning and 
                        premeditation.--The defendant committed the 
                        offense after substantial planning and 
                        premeditation.
                            ``(x) Vulnerability of victim.--The victim 
                        was particularly vulnerable due to old age, 
                        youth, or infirmity.
                            ``(xi) Type of victim.--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 listed 
                                in section 1116(b)(3)(A) of this title, 
                                if that 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--
                                            ``(aa) while such public 
                                        servant is engaged in the 
                                        performance of the public 
                                        servant's official duties;
                                            ``(bb) because of the 
                                        performance of such public 
                                        servant's official duties; or
                                            ``(cc) because of such 
                                        public servant's status as a 
                                        public servant.
                        For purposes of this clause, the terms 
                        `President-elect' and `Vice President-elect' 
                        mean such persons as 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 
                        title 3, United States Code, sections 1 and 2; 
                        a `Federal law enforcement officer' is 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; `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 
                        `Federal judge' means any judicial officer of 
                        the United States, and includes 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.
            ``(3) Special hearing to determine whether a sentence of 
        death is justified.--
                    ``(A) Notice by the government.--Whenever the 
                Government intends to seek the death penalty for an 
                offense described in paragraph (1), 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--
                            ``(i) that the Government in the event of 
                        conviction will seek the sentence of death; and
                            ``(ii) setting forth the aggravating factor 
                        or factors enumerated in paragraph (2) and any 
                        other aggravating factor not specifically 
                        enumerated in paragraph (2), 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 subparagraph (A) and the defendant is 
                found guilty of an offense described in paragraph (1), 
                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--
                            ``(i) before the jury that determined the 
                        defendant's guilt;
                            ``(ii) before a jury impaneled for the 
                        purpose of the hearing if--
                                    ``(I) the defendant was convicted 
                                upon a plea of guilty;
                                    ``(II) the defendant was convicted 
                                after a trial before the court sitting 
                                without a jury;
                                    ``(III) the jury that determined 
                                the defendant's guilt was discharged 
                                for good cause; or
                                    ``(IV) after initial imposition of 
                                a sentence under this paragraph, 
                                reconsideration of the sentence under 
                                the section is necessary; or
                            ``(iii) before the court alone, upon motion 
                        of the defendant and with the approval of the 
                        attorney for the Government.
                A jury impaneled pursuant to clause (ii) 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 
                as to--
                            ``(i) any matter relating to any mitigating 
                        factor listed in paragraph (2) and any other 
                        mitigating factor; and
                            ``(ii) any matter relating to any 
                        aggravating factor listed in paragraph (2) for 
                        which notice has been provided under 
                        subparagraph (A)(ii) 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 attorney for the 
                Government and for 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 attorney for 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 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 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 paragraph (2) of this 
                title found to exist and any other aggravating factor 
                for which notice has been provided under subparagraph 
                (A) found to exist. A finding with respect to a 
                mitigating factor may be made by one 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 paragraph (2) 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 an aggravating factor required to be 
                considered under paragraph (2)(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 one aggravating factor and no mitigating 
                factor or if it finds one 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 assure against 
                discrimination.--In a hearing held before a jury, the 
                court, before the return of a finding under 
                subparagraph (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 
                subparagraph (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.
            ``(4) Imposition of a sentence of death.--Upon the 
        recommendation under paragraph (3)(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 provision of 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.
            (5) 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 paragraph 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--
                            ``(i) the evidence submitted during the 
                        trial;
                            ``(ii) the information submitted during the 
                        sentencing hearing;
                            ``(iii) the procedures employed in the 
                        sentencing hearing; and
                            ``(iv) the special findings returned under 
                        paragraph (3)(D).
                    ``(C) Decision and disposition.--
                            ``(i) If the court of appeals determines 
                        that--
                                    ``(I) the sentence of death was not 
                                imposed under the influence of passion, 
                                prejudice, or any other arbitrary 
                                factor; and
                                    ``(II) the evidence and information 
                                support the special findings of the 
                                existence of an aggravating factor or 
                                factors;
                        it shall affirm the sentence.
                            ``(ii) In any other case, the court of 
                        appeals shall remand the case for 
                        reconsideration under paragraph (3) of this 
                        title or for imposition of another authorized 
                        sentence as appropriate.
                            ``(iii) The court of appeals shall state in 
                        writing the reasons for its disposition of an 
                        appeal of sentence of death under this 
                        paragraph.
            ``(6) Implementation of a sentence of death.--
                    ``(A) In general.--A person who has been sentenced 
                to death pursuant to this subsection 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 such 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 such 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--
                            ``(i) cannot understand the nature of the 
                        pending proceedings, what such person was tried 
                        for, the reason for the punishment, or the 
                        nature of the punishment; or
                            ``(ii) lacks the capacity to recognize or 
                        understand facts which 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 
                paragraph, if such participation is contrary to the 
                moral or religious convictions of the employee. For 
                purposes of this subparagraph, 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.
            ``(7) 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.
            ``(8) Appointment of counsel.--
                    ``(A) Federal capital cases.--
                            ``(i) Representation of indigent 
                        defendants.--Notwithstanding any other 
                        provision of law, this subparagraph shall 
                        govern the appointment of counsel for any 
                        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, where 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 one of 
                        the conditions specified in paragraph (9)(B) 
                        has occurred.
                            ``(ii) Representation before finality of 
                        judgment.--A defendant within the scope of this 
                        subparagraph shall have counsel appointed for 
                        trial representation as provided in section 
                        3005 of this title. At least one 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.
                            ``(iii) 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 of receipt of such 
                        notice, the district court shall proceed to 
                        make a determination whether the defendant is 
                        eligible under this subparagraph for 
                        appointment of counsel for subsequent 
                        proceedings. On the basis of the determination, 
                        the court shall issue an order (I) appointing 
                        one 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; (II) 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 (III) denying the appointment 
                        of counsel upon a finding that the defendant is 
                        financially able to obtain adequate 
                        representation. Counsel appointed pursuant to 
                        this clause 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.
                            ``(iv) Standards for competence of 
                        counsel.--In relation to a defendant who is 
                        entitled to appointment of counsel under this 
                        subparagraph, at least one 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 the Federal district 
                        courts. 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 him or her to properly 
                        represent the defendant, with due consideration 
                        of the seriousness of the penalty and the 
                        nature of the litigation.
                            ``(v) Applicability of criminal justice 
                        act.--Except as otherwise provided in this 
                        subparagraph, the provisions of section 3006A 
                        of this title shall apply to appointments under 
                        this subparagraph.
                            ``(vi) Claims of ineffectiveness of 
                        counsel.--The ineffectiveness or incompetence 
                        of counsel during proceedings on a motion under 
                        section 2255 of title 28, United States Code, 
                        in a capital case shall not be a ground for 
                        relief from the judgment or sentence in any 
                        proceeding. This limitation 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, United 
                States Code, 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 the 
                provisions of section 3006A of this title.
            ``(9) 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 as described in paragraph 
                (8)(A)(ii), a motion in the case under section 2255 of 
                title 28, United States Code, must be filed within 90 
                days of the issuance of the order relating to 
                appointment of counsel under paragraph (8)(A)(iii). The 
                court in which the motion is filed, for good cause 
                shown, may extend the time for filing for a period not 
                exceeding 60 days. A motion described in this paragraph 
                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, United States Code. The stay shall run 
                continuously following imposition of the sentence and 
                shall expire if--
                            ``(i) the defendant fails to file a motion 
                        under section 2255 of title 28, United States 
                        Code, within the time specified in subparagraph 
                        (A), or fails to make a timely application for 
                        court of appeals review following the denial of 
                        such a motion by a district court;
                            ``(ii) upon completion of district court 
                        and court of appeals review under section 2255 
                        of title 28, United States Code, the motion 
                        under that section is denied and (I) the time 
                        for filing a petition for certiorari has 
                        expired and no petition has been filed; (II) a 
                        timely petition for certiorari was filed and 
                        the Supreme Court denied the petition; or (III) 
                        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
                            ``(iii) before a district court, in the 
                        presence of counsel and after having been 
                        advised of the consequences of his decision, 
                        the defendant waives the right to file a motion 
                        under section 2255 of title 28, United States 
                        Code.
                    ``(C) Finality of the decision on review.--If one 
                of the conditions specified in subparagraph (B) has 
                occurred, no court thereafter shall have the authority 
                to enter a stay of execution or grant relief in the 
                case unless--
                            ``(i) the basis for the stay and request 
                        for relief is a claim not presented in earlier 
                        proceedings;
                            ``(ii) the failure to raise the claim is 
                        (I) the result of governmental action in 
                        violation of the Constitution or laws of the 
                        United States; (II) the result of the Supreme 
                        Court recognition of a new Federal right that 
                        is retroactively applicable; or (III) 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
                            ``(iii) 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.''.

                                 <all>

S 248 IS----2
S 248 IS----3