[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 729 Introduced in House (IH)]







104th CONGRESS
  1st Session
                                H. R. 729

          To control crime by a more effective death penalty.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 30, 1995

 Mr. McCollum introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
          To control crime by a more effective death penalty.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Effective Death 
Penalty Act of 1995''.
    (b) Table of Contents.--The table of contents is as follows:

Sec. 1. Short title; table of contents.
                     TITLE I--HABEAS CORPUS REFORM

  Subtitle A--Post Conviction Petitions: General Habeas Corpus Reform

Sec. 101. Period of limitation for filing writ of habeas corpus 
                            following final judgment of a State court.
Sec. 102. Authority of appellate judges to issue certificates of 
                            probable cause for appeal in habeas corpus 
                            and Federal collateral relief proceedings.
Sec. 103. Conforming amendment to the rules of appellate procedure.
Sec. 104. Effect of failure to exhaust State remedies.
Sec. 105. Period of limitation for Federal prisoners filing for 
                            collateral remedy.
 Subtitle B--Special Procedures for Collateral Proceedings in Capital 
                                 Cases

Sec. 111. Death penalty litigation procedures.
 Subtitle C--Funding For Litigation of Federal Habeas Corpus Petitions 
                            in Capital Cases

Sec. 121. Funding for death penalty prosecutions.
           TITLE II--FEDERAL DEATH PENALTY PROCEDURES REFORM

Sec. 201. Federal death penalty procedures reform.

                    TITLE I--EFFECTIVE DEATH PENALTY

  Subtitle A--Post Conviction Petitions: General Habeas Corpus Reform

SEC. 101. PERIOD OF LIMITATION FOR FILING WRIT OF HABEAS CORPUS 
              FOLLOWING FINAL JUDGMENT OF A STATE COURT.

    Section 2244 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(d)(1) 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:
            ``(A) The time at which the judgment became final by the 
        conclusion of direct review or the expiration of the time for 
        seeking such review.
            ``(B) The time at which the impediment to filing an 
        application created by State action in violation of the 
        Constitution or laws of the United States is removed, where the 
        applicant was prevented from filing by such State action.
            ``(C) 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.
            ``(D) The time at which the factual predicate of the claim 
        or claims presented could have been discovered through the 
        exercise of reasonable diligence.
    ``(2) Time that passes during the pendency of a properly filed 
application for State review with respect to the pertinent judgment or 
claim shall not be counted toward any period of limitation under this 
subsection.''.

SEC. 102. AUTHORITY OF APPELLATE JUDGES TO ISSUE CERTIFICATES OF 
              PROBABLE CAUSE FOR APPEAL IN HABEAS CORPUS AND FEDERAL 
              COLLATERAL RELIEF PROCEEDINGS.

    Section 2253 of title 28, United States Code, is amended to read as 
follows:
``Sec. 2253. Appeal
    ``(a) 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.
    ``(b) 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.
    ``(c) 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. A certificate of probable cause may only issue if the petitioner 
has made a substantial showing of the denial of a Federal right. The 
certificate of probable cause must indicate which specific issue or 
issues satisfy this standard.''.

SEC. 103. CONFORMING AMENDMENT TO THE RULES OF APPELLATE PROCEDURE.

    Federal Rule of Appellate Procedure 22 is amended to read as 
follows:

                               ``RULE 22

              ``habeas corpus and section 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 of 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. 104. EFFECT OF FAILURE TO EXHAUST STATE REMEDIES.

    Section 2254(b) of title 28, United States Code, is amended 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 State. A State shall not be deemed to 
have waived the exhaustion requirement, or be estopped from reliance 
upon the requirement unless through its counsel it waives the 
requirement expressly.''.

SEC. 105. PERIOD OF LIMITATION FOR FEDERAL PRISONERS FILING FOR 
              COLLATERAL REMEDY.

    Section 2255 of title 28, United States Code, is amended by 
striking the second paragraph and the penultimate paragraph thereof, 
and by adding at the end the following new paragraphs:
    ``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.
            ``(4) The time at which the factual predicate of the claim 
        or claims presented could have been discovered through the 
        exercise of reasonable diligence.''.

 Subtitle B--Special Procedures for Collateral Proceedings in Capital 
                                 Cases

SEC. 111. DEATH PENALTY LITIGATION PROCEDURES.

    (a) In General.--Title 28, United States Code, is amended by 
inserting the following new chapter after 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. Scope of Federal review; district court adjudications.
``2260. Certificate of probable cause inapplicable.
``2261. Application to State unitary review procedures.
``2262. Limitation periods for determining petitions.
``2263. Rule of construction.
``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 
brought by prisoners in State custody who are subject to a capital 
sentence. It shall apply only if the provisions of 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 postconviction 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 or 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 
is indigent and accepted the offer or is unable competently to decide 
whether to accept or reject the offer; (2) finding, after a hearing if 
necessary, that the prisoner 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 postconviction proceedings in a capital case 
shall not be a ground for relief in a proceeding arising under section 
2254 of this chapter. This limitation shall not preclude the 
appointment of different counsel, on the court's own motion or at the 
request of the prisoner, at any phase of State or Federal 
postconviction proceedings on the basis of the ineffectiveness or 
incompetence of counsel in such 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 under section 2256(c), 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 under section 
2254. The application must recite that the State has invoked the 
postconviction 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 within the time required in section 
        2258, or fails to make a timely application for court of 
        appeals review following the denial of such a petition by a 
        district court;
            ``(2) upon completion of district court and court of 
        appeals review under section 2254 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, in the 
        presence of counsel and after having been advised of the 
        consequences of his decision, a State prisoner under capital 
        sentence waives the right to pursue habeas corpus review under 
        section 2254.
    ``(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 is (A) the result of 
        State 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 for State or Federal postconviction 
        review; and
            ``(3) the facts underlying the claim would be sufficient to 
        establish by clear and convincing evidence that but for 
        constitutional error, no reasonable fact finder would have 
        found the petitioner guilty of the underlying offense.
    ``(d) Notwithstanding any other provision of law, no Federal 
district court or appellate judge shall have the authority to enter a 
stay of execution, issue injunctive relief, or grant any equitable or 
other relief in a capital case on any successive habeas petition unless 
the court first determines the petition or other action does not 
constitute an abuse of the writ. This determination shall be made only 
by the district judge or appellate panel who adjudicated the merits of 
the original habeas petition (or to the district judge or appellate 
panel to which the case may have been subsequently assigned as a result 
of the unavailability of the original court or judges). In the Federal 
courts of appeal, a stay may issue pursuant to the terms of this 
provision only when a majority of the original panel or majority of the 
active judges determines the petition does not constitute an abuse of 
the writ.
``Sec. 2258. Filing of habeas corpus petition; time requirements; 
              tolling rules
    ``Any petition for habeas corpus relief under section 2254 must be 
filed in the appropriate district court within one hundred and eighty 
days from the filing in the appropriate State court of record of an 
order under section 2256(c). 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 files the petition to secure 
        review by the Supreme Court of the affirmance of a capital 
        sentence on direct review by the court of last resort of the 
        State or other final State court decision on direct review;
            ``(2) during any period in which a State prisoner under 
        capital sentence has a properly filed request for 
        postconviction review pending before a State court of competent 
        jurisdiction; if all State filing rules are met in a timely 
        manner, this period shall run continuously from the date that 
        the State prisoner initially files for postconviction review 
        until final disposition of the case by the highest court of the 
        State, but the time requirements established by this section 
        are not tolled during the pendency of a petition for certiorari 
        before the Supreme Court except as provided in paragraph (1); 
        and
            ``(3) during an additional period not to exceed sixty days, 
        if (A) a motion for an extension of time is filed in the 
        Federal district court that would have proper jurisdiction over 
        the case upon the filing of a habeas corpus petition under 
        section 2254; and (B) a showing of good cause is made for the 
        failure to file the habeas corpus petition within the time 
        period established by this section.
``Sec. 2259. Scope of Federal review; district court adjudications
    ``(a) Whenever a State prisoner under capital sentence files a 
petition for habeas corpus relief to which this chapter applies, the 
district court shall only consider a claim or claims that have been 
raised and decided on the merits in the State courts, unless the 
failure to raise the claim properly is--
            ``(1) the result of State action in violation of the 
        Constitution or laws of the United States;
            ``(2) the result of the Supreme Court recognition of a new 
        Federal right that is retroactively applicable; or
            ``(3) based on a factual predicate that could not have been 
        discovered through the exercise of reasonable diligence in time 
        to present the claim for State or Federal postconviction 
        review.
    ``(b) Following review subject to the constraints set forth in 
subsection (a) and section 2254(d) of this title, the court shall rule 
on 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 the provisions of this chapter except 
when a second or successive petition is filed.
``Sec. 2261. Application to State unitary review procedure
    ``(a) For purposes of this section, a `unitary review' procedure 
means a State procedure that authorizes a person under sentence of 
death to raise, in the course of direct review of the judgment, such 
claims as could be raised on collateral attack. The provisions of this 
chapter shall apply, as provided in this section, in relation to a 
State unitary review procedure if the 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 the unitary review proceedings, including expenses relating 
to the litigation of collateral claims in the proceedings. The rule of 
court or statute must provide standards of competency for the 
appointment of such counsel.
    ``(b) A unitary review procedure, to qualify under this section, 
must include an offer of counsel following trial for the purpose of 
representation on unitary review, and entry of an order, as provided in 
section 2256(c), concerning appointment of counsel or waiver or denial 
of appointment of counsel for that purpose. No counsel appointed to 
represent the prisoner in the unitary review proceedings shall have 
previously represented the prisoner at trial in the case for which the 
appointment is made unless the prisoner and counsel expressly request 
continued representation.
    ``(c) Sections 2257, 2258, 2259, 2260, and 2262 shall apply in 
relation to cases involving a sentence of death from any State having a 
unitary review procedure that qualifies under this section. References 
to State `post-conviction review' and `direct review' in those sections 
shall be understood as referring to unitary review under the State 
procedure. The references in sections 2257(a) and 2258 to `an order 
under section 2256(c)' shall be understood as referring to the post-
trial order under subsection (b) concerning representation in the 
unitary review proceedings, but if a transcript of the trial 
proceedings is unavailable at the time of the filing of such an order 
in the appropriate State court, then the start of the one hundred and 
eighty day limitation period under section 2258 shall be deferred until 
a transcript is made available to the prisoner or his counsel.
``Sec. 2262. Limitation periods for determining petitions
    ``(a)(1) A Federal district court shall determine such a petition 
or motion within 60 days of any argument heard on an evidentiary 
hearing, or where no evidentiary hearing is held, within 60 days of any 
final argument heard in the case.
    ``(2)(A) The court of appeals shall determine any appeal relating 
to such a petition or motion within 90 days after the filing of any 
reply brief or within 90 days after such reply brief would be due. For 
purposes of this provision, any reply brief shall be due within 14 days 
of the opposition brief.
    ``(B) The court of appeals shall decide any petition for rehearing 
and or request by an appropriate judge for rehearing en banc within 20 
days of the filing of such a petition or request unless a responsive 
pleading is required in which case the court of appeals shall decide 
the application within 20 days of the filing of the responsive 
pleading. If en banc consideration is granted, the en banc court shall 
determine the appeal within 90 days of the decision to grant such 
consideration.
    ``(3) The time limitations contained in paragraphs (1) and (2) may 
be extended only once for 20 days, upon an express good cause finding 
by the court that the interests of justice warrant such a one-time 
extension. The specific grounds for the good cause finding shall be set 
forth in writing in any extension order of the court.
    ``(b) The time limitations under subsection (a) shall apply to an 
initial petition or motion, and to any second or successive petition or 
motion. The same limitations shall also apply to the re-determination 
of a petition or motion or related appeal following a remand by the 
court of appeals or the Supreme Court for further proceedings, and in 
such a case the limitation period shall run from the date of the 
remand.
    ``(c) The time limitations under this section shall not be 
construed to entitle a petitioner or movant to a stay of execution, to 
which the petitioner or movant would otherwise not be entitled, for the 
purpose of litigating any petition, motion, or appeal.
    ``(d) The failure of a court to meet or comply with the time 
limitations under this section shall not be a ground for granting 
relief from a judgment of conviction or sentence. The State or 
Government may enforce the time limitations under this section by 
applying to the court of appeals or the Supreme Court for a writ of 
mandamus.
    ``(e) The Administrative Office of United States Courts shall 
report annually to Congress on the compliance by the courts with the 
time limits established in this section.
    ``(f) The adjudication of any petition under section 2254 of this 
title that is subject to this chapter, and the adjudication of any 
motion under section 2255 of this title by a person under sentence of 
death, shall be given priority by the district court and by the court 
of appeals over all noncapital matters.
``Sec. 2263. Rule of construction
    ``This chapter shall be construed to promote the expeditious 
conduct and conclusion of State and Federal court review in capital 
cases.''.
    (b) Clerical Amendment.--The table of chapters at the beginning of 
part VI of title 28, United States Code, is amended by inserting after 
the item relating to chapter 153 the following new item:

``154. Special habeas corpus procedures in capital cases....    2256''.

 Subtitle C--Funding for Litigation of Federal Habeas Corpus Petitions 
                            in Capital Cases

SEC. 121. FUNDING FOR DEATH PENALTY PROSECUTIONS.

    Part E of title I of the Omnibus Crime Control and Safe Streets Act 
of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the end the 
following new section:
    ``Sec. 515. Notwithstanding any other provision of this subpart, 
the Director shall provide grants to the States, from the funding 
allocated pursuant to section 511, for the purpose of supporting 
litigation pertaining to Federal habeas corpus petitions in capital 
cases. The total funding available for such grants within any fiscal 
year shall be equal to the funding provided to capital resource 
centers, pursuant to Federal appropriation, in the same fiscal year.''.

           TITLE II--FEDERAL DEATH PENALTY PROCEDURES REFORM

SEC. 201. FEDERAL DEATH PENALTY PROCEDURES REFORM.

    (a) In General.--Subsection (e) of section 3593 of title 18, United 
States Code, is amended by striking ``Based upon this consideration'' 
and all that follows through the end of such subsection and inserting 
the following: ``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 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. The jury shall be instructed that its recommendation 
concerning a sentence of death is to be based on the aggravating factor 
or factors and any mitigating factors which have been found, but that 
the final decision concerning the balance of aggravating and mitigating 
factors is a matter for the jury's judgment.''.
    (b)  Conforming Amendment.--Section 3594 of title 18, United States 
Code, is amended by striking ``or life imprisonment without possibility 
of release''.
                                 <all>
HR 729 IH----2