[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 47 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 47

To amend title 28, United States Code, to provide special habeas corpus 
                      procedures in capital cases.


_______________________________________________________________________


                   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 amend title 28, United States Code, to provide special habeas corpus 
                      procedures in capital cases.

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

           special habeas corpus procedures in capital cases

    (a) Title 28, United States Code, is amended by inserting the 
following new chapter immediately following chapter 153:

    ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

``Sec.
``2256. Prisoners in State custody subject to capital sentence; 
                            appointment of counsel; requirement of rule 
                            of court or statute; procedures for 
                            appointment.
``2257. Mandatory stay of execution; duration; limits on stays of 
                            execution; successive petitions.
``2258. Filing of habeas corpus petition; time requirements; tolling 
                            rules.
``2259. Evidentiary hearings; scope of Federal review; district court 
                            adjudication.
``2260. Certificate of probable cause inapplicable.
``Sec. 2256. Prisoners in State custody subject to capital sentence; 
              appointment of counsel; requirement of rule of court or 
              statute; procedures for appointment
    ``(a) This chapter shall apply to cases arising under section 2254 
of this title brought by prisoners in State custody who are subject to 
a capital sentence. It shall apply only if subsections (b) and (c) are 
satisfied.
    ``(b) This chapter is applicable if a State establishes by rule of 
its court of last resort or by statute a mechanism for the appointment, 
compensation, and payment of reasonable litigation expenses of 
competent counsel in State post-conviction proceedings brought by 
indigent prisoners whose capital convictions and sentences have been 
upheld on direct appeal to the court of last resort in the State to 
have otherwise become final for State law purposes. The rule of court 
or statute must provide standards of competency for the appointment of 
such counsel.
    ``(c) Any mechanism for the appointment, compensation, and 
reimbursement of counsel as provided in subsection (b) must offer 
counsel to all State prisoners under capital sentence and must provide 
for the entry of an order by a court of record--
            ``(1) appointing one or more counsel to represent the 
        prisoner upon a finding that the prisoner--
                    ``(A) is indigent and has accepted the offer; or
                    ``(B) is unable competently to decide whether to 
                accept or reject the offer;
            ``(2) finding, after a hearing, if necessary, that the 
        prisoner has rejected the offer of counsel and made the 
        decision with an understanding of its legal consequences; or
            ``(3) denying the appointment of counsel upon a finding 
        that the prisoner is not indigent.
    ``(d) No counsel appointed pursuant to subsections (b) and (c) to 
represent a State prisoner under capital sentence shall have previously 
represented the prisoner at trial or on direct appeal in the case for 
which the appointment is made unless the prisoner and counsel expressly 
request continued representation.
    ``(e) The ineffectiveness or incompetence of counsel during State 
or Federal collateral post-conviction proceedings in a capital case 
shall not be a ground for relief in a proceeding arising under this 
chapter or section 2254 of this title. This subsection shall not 
preclude the appointment of different counsel at any phase of State or 
Federal post-conviction proceedings.
``Sec. 2257. Mandatory stay of execution; duration; limits on stays of 
              execution; successive petitions
    ``(a) Upon the entry in the appropriate State court of record of an 
order pursuant to section 2256(c) of this title, a warrant or order 
setting an execution date for a State prisoner shall be stayed upon 
application to any court that would have jurisdiction over any 
proceedings filed pursuant to section 2254 of this title. The 
application must recite that the State has invoked the post-conviction 
review procedures of this chapter and that the scheduled execution is 
subject to stay.
    ``(b) A stay of execution granted pursuant to subsection (a) shall 
expire if--
            ``(1) a State prisoner fails to file a habeas corpus 
        petition under section 2254 of this title within the time 
        required in section 2258 of this title; or
            ``(2) upon completion of district court and court of 
        appeals review under section 2254 of this title, the petition 
        for relief is denied and--
                    ``(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 court of competent jurisdiction, a State 
        prisoner under capital sentence waives the right to pursue 
        habeas corpus review under section 2254 of this title, in the 
        presence of counsel and after having been advised of the 
        consequences of making the waiver.
    ``(c) If one of the conditions in subsection (b) has occurred, no 
Federal court thereafter shall have the authority to enter a stay of 
execution or grant relief in a capital case unless--
            ``(1) the basis for the stay and request for relief is a 
        claim not previously presented in the State or Federal courts;
            ``(2) the failure to raise the claim--
                    ``(A) was the result of State action in violation 
                of the Constitution or laws of the United States;
                    ``(B) was the result of a recognition by the 
                Supreme Court of a new Federal right that is 
                retroactively applicable; or
                    ``(C) is due to the fact that the claim is based on 
                facts that could not have been discovered through the 
                exercise of reasonable diligence in time to present the 
                claim for State or Federal post-conviction review; and
            ``(3) the facts underlying the claim would be sufficient, 
        if proven, to undermine the court's confidence in the jury's 
        determination of guilt on the offense or offenses for which the 
        death penalty was imposed.
``Sec. 2258. Filing of habeas corpus petition; time requirements; 
              tolling rules
    ``(a) Any petition for habeas corpus relief under section 2254 of 
this title must be filed in the appropriate district court not later 
than 180 days after the filing in the appropriate State court of record 
of an order issued in compliance with section 2256(c) of this title. 
The time requirements established by this section shall be tolled--
            ``(1) from the date that a petition for certiorari is filed 
        in the Supreme Court until the date of final disposition of the 
        petition if a State prisoner seeks review of a capital sentence 
        that has been affirmed on direct appeal by the court of last 
        resort of the State or has otherwise become final for State law 
        purposes;
            ``(2) subject to subsection (b), during any period in which 
        a State prisoner under capital sentence has a properly filed 
        request for post-conviction review pending before a State court 
        of competent jurisdiction; and
            ``(3) during an additional period not to exceed 60 days, if 
        counsel for the State prisoner--
                    ``(A) moves for an extension of time in the Federal 
                district court that would have jurisdiction over the 
                case upon the filing of a habeas corpus petition under 
                section 2254 of this title; and
                    ``(B) makes a showing of good cause for counsel's 
                inability to file the habeas corpus petition within the 
                180-day period established by this section.
    ``(b)(1) The time requirement established by subsection (a) shall 
be continuously tolled under paragraph (2) of that subsection from the 
date the State prisoner initially files for post-conviction review 
until the date of final disposition of the case by the highest court of 
the State so long as all State filing rules are timely met.
    ``(2) Tolling shall not occur under subsection (a)(2) during the 
pendency of a petition for certiorari before the Supreme Court 
following State post-conviction review.
``Sec. 2259. Evidentiary hearings; scope of Federal review; district 
              court adjudication
    ``(a) When a State prisoner under a capital sentence files a 
petition for habeas corpus relief to which this chapter applies, the 
district court shall--
            ``(1) determine the sufficiency of the evidentiary record 
        for habeas corpus review based on the claims actually presented 
        and litigated in the State courts, unless the prisoner shows 
        that the failure to raise or develop a claim in the State 
        courts--
                    ``(A) was the result of State action in violation 
                of the Constitution or laws of the United States;
                    ``(B) was the result of a recognition by the 
                Supreme Court of a new Federal right that is 
                retroactively applicable; or
                    ``(C) is due to the fact that the claim is based on 
                facts that could not have been discovered through the 
                exercise of reasonable diligence in time to present the 
                claim for State post-conviction review; and
            ``(2) conduct any requested evidentiary hearing necessary 
        to complete the record for habeas corpus review.
    ``(b) Upon the development of a complete evidentiary record, the 
district court shall rule on the merits of the claims properly before 
it.
``Sec. 2260. Certificate of probable cause inapplicable
    ``The requirement of a certificate of probable cause in order to 
appeal from the district court to the court of appeals does not apply 
to habeas corpus cases subject to this chapter except when a second or 
successive petition is filed.''.

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