[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 38 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 38

 To reform procedures for collateral review of criminal judgments, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             January 21 (legislative day, January 5), 1993

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

_______________________________________________________________________

                                 A BILL


 
 To reform procedures for collateral review of criminal judgments, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
That this Act may be cited as the ``Reform of Federal Intervention in 
State Proceedings Act of 1993''.
    Sec. 2. Section 2244 of title 28, United States Code, is amended by 
adding at the end thereof the following new subsections:
    ``(d) When a person in custody pursuant to the judgment of a State 
court fails to raise a claim in State proceedings at the time or in the 
manner required by State rules of procedure, the claim shall not be 
entertained in an application for a writ of habeas corpus unless actual 
prejudice resulted to the applicant from the alleged denial of the 
Federal right asserted and--
            ``(1) the failure to raise the claim properly or to have it 
        heard in State proceedings was the result of State action in 
        violation of the Constitution or laws of the Unites States;
            ``(2) the Federal right asserted was newly recognized by 
        the Supreme Court subsequent to the procedural default and is 
        retroactively applicable; or
            ``(3) the factual predicate of the claim could not have 
        been discovered through the exercise of reasonable diligence 
        prior to the procedural default.
    ``(e) A one-year period of limitation shall apply to an application 
for a writ of habeas corpus by a person in custody pursuant to the 
judgment of a State court. The limitation period shall run from the 
latest of the following times:
            ``(1) the time at which State remedies are exhausted;
            ``(2) the time at which the impediment to filing an 
        application created by State action in violation of the 
        Constitution or laws of the Untied States is removed, where the 
        applicant was prevented from filing by such State action;
            ``(3) the time at which the Federal right asserted was 
        initially recognized by the Supreme Court, where the right has 
        been newly recognized by the Court and is retroactively 
        applicable; or
            ``(4) the time at which the factual predicate of the claim 
        or claims presented could have been discovered through the 
        exercise of reasonable diligence.''.
    Sec. 3. Section 2253 of title 28, United States Code, is amended to 
read as follows:
``Sec. 2253. Appeal
    ``In a habeas corpus proceeding or a proceeding under section 2255 
of this title before a circuit or district judge, the final order shall 
be subject to review, on appeal, by the court of appeals for the 
circuit where the proceeding is had.
    ``There shall be no right of appeal from such an order in a 
proceeding to test the validity of a warrant to remove, to another 
district or place for commitment or trial, a person charged with a 
criminal offense against the United States, or to test the validity of 
his detention pending removal proceedings.
    ``An appeal may not be taken to the court of appeals from the final 
order in a habeas corpus proceeding where the detention complained of 
arises out of process issued by a State court, or from the final order 
in a proceeding under section 2255 of this title, unless a circuit 
justice or judge issues a certificate of probable cause.''.
    Sec. 4. Federal Rule of Appellate Procedure 22 is amended to read 
as follows:

                                Rule 22

               ``habeas corpus and Sec. 2255 proceedings

    ``(a) Application for an Original Writ of Habeas Corpus. An 
application for a writ of habeas corpus shall be made to the 
appropriate district court. If application is made to a circuit judge, 
the application will ordinarily be transferred to the appropriate 
district court. If an application is made to or transferred to the 
district court and denied, renewal of the application before a circuit 
judge is not favored; the proper remedy is by appeal to the court of 
appeals from the order of the district court denying the writ.
    ``(b) Necessity of Certificate of Probable Cause for Appeal. In a 
habeas corpus proceeding in which the detention complained of arises 
out of process issued by a State court, and in a motion proceeding 
pursuant to section 2255 of title 28, United States Code, an appeal by 
the applicant or movant may not proceed unless a circuit judge issues a 
certificate or probable cause. If a request for a certificate of 
probable cause is addressed to the court of appeals, it shall be deemed 
addressed to the judges thereof and shall be considered by a circuit 
judge or judges as the court deems appropriate. If no express request 
for a certificate is filed, the notice of appeal shall be deemed to 
constitute a request addressed to the judges of the court of appeals. 
If an appeal is taken by a State or the government or its 
representative, a certificate of probable cause is not required.''.
    Sec. 5. Section 2254 of title 28, United States Code, is amended by 
redesignating subsections ``(e)'' and ``(f)'' as subsections ``(f)'' 
and ``(g)'', respectively, and is further amended--
            (a) by amending subsection (b) to read as follows:
    ``(b) An application for a writ of habeas corpus in behalf of a 
person in custody pursuant to the judgment of a State court shall not 
be granted unless it appears that the applicant has exhausted the 
remedies available in the courts of the State, or that there is either 
an absence of available State corrective process or the existence of 
circumstances rendering such process ineffective to protect the rights 
of the applicant. An application may be denied on the merits 
notwithstanding the failure of the applicant to exhaust the remedies 
available in the courts of the States.'';
            (b) by redesignating subsection ``(d)'' as subsection 
        ``(e)'', and amending it to read as follows:
    ``(e) In a proceeding instituted by an application for a writ of 
habeas corpus by a person in custody pursuant to the judgment of a 
State court, a full and fair determination of a factual issue made in 
the case by a State court shall be presumed to be correct. The 
applicant shall have the burden of rebutting this presumption by clear 
and convincing evidence.''; and
            (c) by adding a new subsection (d) reading as follows:
    ``(d) An application for a writ of habeas corpus in behalf of a 
person in custody pursuant to the judgment of a State court shall not 
be granted with respect to any claim that has been fully and fairly 
adjudicated in State proceedings.''.
    Sec. 6. Section 2255 of title 28, United States Code, is amended by 
deleting the second paragraph and the penultimate paragraph thereof, 
and by adding at the end thereof the following new paragraphs:
    ``When a person fails to raise a claim at the time or in the manner 
required by Federal rules of procedure, the claim shall not be 
entertained in a motion under this section unless actual prejudice 
resulted to the movant from the alleged denial of the right asserted 
and--
            ``(1) the failure to raise the claim properly, or to have 
        it heard, was the result of governmental action in violation of 
        the Constitution or laws of the Unites States;
            ``(2) the right asserted was newly recognized by the 
        Supreme Court subsequent to the procedural default and is 
        retroactively applicable; or
            ``(3) the factual predicate of the claim could not have 
        been discovered through the exercise of reasonable diligence 
        prior to the procedural default.
    ``A two-year period of limitation shall apply to a motion under 
this section. The limitation period shall run from the latest of the 
following times;
            ``(1) the time at which the judgment of conviction becomes 
        final;
            ``(2) the time at which the impediment to making a motion 
        created by governmental action in violation of the Constitution 
        or laws of the United States is removed, where the movant was 
        prevented from making a motion by such governmental action;
            ``(3) the time at which the right asserted was initially 
        recognized by the Supreme Court, where the right has been newly 
        recognized by the Court and is retroactively applicable; or
            ``(4) the time at which the factual predicate of the claim 
        or claims presented could have been discovered through the 
        exercise of reasonable diligence.''.

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