[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2446 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2446

To ensure that death penalty defendants have a true opportunity to have 
their cases considered by the courts, to provide all prisoners with an 
    opportunity to present exculpatory DNA evidence, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 2, 2002

   Mr. Specter (for himself, Mr. Biden, Mr. Durbin, and Ms. Collins) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To ensure that death penalty defendants have a true opportunity to have 
their cases considered by the courts, to provide all prisoners with an 
    opportunity to present exculpatory DNA evidence, and for other 
                               purposes.

    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 ``Confidence in 
Criminal Justice Act of 2002''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
    TITLE I--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF 
                               CERTIORARI

Sec. 101. Protecting the rights of death row inmates to review of cases 
                            granted certiorari.
Sec. 102. Habeas corpus.
                  TITLE II--POSTCONVICTION DNA TESTING

Sec. 201. Postconviction DNA testing.
Sec. 202. Prohibition pursuant to section 5 of the 14th amendment.
TITLE III--MANDATORY MINIMAL DEFENSE COUNSEL STANDARDS IN STATE COURTS 
                           FOR CAPITAL CASES.

Sec. 301. Right to legal representation for indigent defendants.
Sec. 302. Minimum experience required for defense counsel.
Sec. 303. Adequate representation.
Sec. 304. Attorney fees and costs.
Sec. 305. Irrebuttable presumption of deficient performance.

    TITLE I--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF 
                               CERTIORARI

SEC. 101. PROTECTING THE RIGHTS OF DEATH ROW INMATES TO REVIEW OF CASES 
              GRANTED CERTIORARI.

    Section 2101 of title 28, United States Code, is amended by adding 
at the end the following:
    ``(h) Upon notice by a party that has filed a motion for a stay of 
execution or filed for certiorari with, or has been granted certiorari 
by, the United States Supreme Court in an appeal from a case in which 
the sentence is death, the Governor of the State in which the death 
sentence is to be carried out, in a State case, or the Director of the 
Bureau of Prisons, the Secretary of a military branch, or any other 
Federal official with authority to carry out the death sentence, in a 
Federal case, shall suspend the execution of the sentence of death 
until the United States Supreme Court enters a stay of execution or 
until certiorari is acted upon and the case is disposed of by the 
United States Supreme Court.
    ``(i) For purposes of this section, the United States Supreme Court 
shall treat a motion for a stay of execution as a petition for 
certiorari.
    ``(j) In an appeal from a case in which the sentence is death, a 
writ of certiorari shall be issued by the United States Supreme Court 
upon the vote of at least 4 qualified justices.''.

SEC. 102. HABEAS CORPUS.

    (a) State Court Proceedings.--Section 2251 of title 28, United 
States Code, is amended--
            (1) by inserting ``(a)'' at the beginning of the text;
            (2) by inserting ``(b)'' before the second sentence; and
            (3) by adding at the end the following:
    ``(c)(1) Notwithstanding any other provision of law, a justice or 
judge of the United States before whom a habeas corpus proceeding that 
involves the death sentence is pending shall stay the execution of the 
death sentence until the proceeding is completed. If the issuance of 
such a stay requires more than 1 judge to concur or vote on the stay, 
the court before which the proceeding is pending shall grant the stay.
    ``(2) For purposes of this subsection, a case is pending before a 
court in the Circuit Court of Appeals if a notice of appeal has been 
filed and is pending before the United States Supreme Court, if a 
petition for certiorari has been filed, or if a motion to stay 
execution has been filed.
    ``(3) A case described in paragraph (2) remains pending before the 
court until the petition for certiorari is denied. If the petition is 
granted, the case remains pending.
    ``(4) If a higher court is unable or fails to issue a stay pursuant 
to this subsection, a lower court before which the case had been 
pending shall issue the stay of execution.
    ``(d) For purposes of this section, a motion to stay execution 
shall be treated as a petition for certiorari.''.
    (b) Federal Court Proceedings.--Section 2255 of title 28, United 
States Code, is amended by adding at the end the following:
    ``Notwithstanding any other provision of law, a justice or judge of 
the United States, before whom a habeas corpus proceeding that involves 
a Federal death sentence is pending, shall stay the execution of the 
death sentence until the proceeding is completed. If the issuance of 
such a stay requires more than 1 judge to concur or vote on the stay, 
the court before which the proceeding is pending shall grant the stay.
    ``If a higher court is unable or fails to issue a stay pursuant to 
the preceding paragraph, a lower court before which the case had been 
pending shall issue the stay of execution. For purposes of this 
section, a motion to stay execution shall be treated as a petition for 
certiorari. A case described in the preceding paragraph--
            ``(1) is pending before a court in the Circuit Court of 
        Appeals if a notice of appeal has been filed; and
            ``(2) is pending before the United States Supreme Court 
        if--
                    ``(A) a petition for certiorari has been filed and 
                has not been denied; or
                    ``(B) a motion to stay execution has been filed.''.

                 TITLE II--POST-CONVICTION DNA TESTING

SEC. 201. POST-CONVICTION DNA TESTING.

    (a) Federal Criminal Procedure.--
            (1) In general.--Part II of title 18, United States Code, 
        is amended by inserting after chapter 228 the following:

              ``CHAPTER 228A--POST-CONVICTION DNA TESTING

``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.
``Sec. 3600. DNA testing
    ``(a) Motion.--
            ``(1) In general.--An individual imprisoned because of a 
        conviction of a criminal offense in a court of the United 
        States (referred to in this section as the `applicant') may 
        make a written motion to the court that entered the judgment of 
        conviction for the performance of forensic DNA testing on 
        specified evidence that was secured in relation to the 
        investigation or prosecution that resulted in the conviction.
            ``(2) Contents.--The motion shall--
                    ``(A) include an assertion by the applicant, under 
                penalty of perjury, that the applicant is actually 
                innocent of the crime for which the applicant is 
                imprisoned or of uncharged conduct, if the exoneration 
                of the applicant of such conduct would result in a 
                mandatory reduction in the sentence of the applicant;
                    ``(B) identify the specific evidence secured in 
                relation to the investigation or prosecution that 
                resulted in the conviction for which testing is 
                requested;
                    ``(C) identify a theory of defense--
                            ``(i) the validity of which would establish 
                        the actual innocence of the applicant, and 
                        explain how the requested DNA testing would 
                        substantiate that theory; and
                            ``(ii) that is not inconsistent with any 
                        affirmative defense issued by the applicant in 
                        the original prosecution;
                    ``(D) make a prima facie showing that the 
                conditions set forth in subsection (c) for issuance of 
                a testing order are satisfied; and
                    ``(E) certify that the applicant will provide a DNA 
                sample from the applicant for purposes of comparison.
            ``(3) Filing.--A motion filed under this section is timely 
        if--
                    ``(A) it is filed within 60 months of the date of 
                enactment of this section;
                    ``(B) the applicant can show that--
                            ``(i) the evidence identified pursuant to 
                        paragraph (2)(B) is newly discovered; and
                            ``(ii)(I) such evidence could not have been 
                        discovered through the exercise of due 
                        diligence; or
                            ``(II) the proximate cause for not having 
                        previously discovered such evidence was the 
                        deficient performance of the attorney of the 
                        applicant; or
                    ``(C) the applicant can show that--
                            ``(i)(I) the technology for the requested 
                        DNA testing was not available at the time of 
                        trial;
                            ``(II) it was not generally known that such 
                        technology was available at the time of trial; 
                        or
                            ``(III) the failure to request such testing 
                        using the technology was due to the deficient 
                        performance of the attorney of the applicant; 
                        and
                            ``(ii) if any of the evidence was 
                        previously subjected to DNA testing, the 
                        testing now requested uses a newer technology 
                        for DNA testing that is reasonably certain to 
                        provide results that are substantially more 
                        accurate and probative than any previous DNA 
                        testing of the evidence.
    ``(b) Notice to the Government; Preservation Order; Appointment of 
Counsel.--
            ``(1) Notice to the government.--Upon receipt of a motion 
        under subsection (a), the court shall promptly notify the 
        government of the motion and afford the government an 
        opportunity to respond to the motion.
            ``(2) Preservation order.--The court may direct the 
        government to preserve any evidence to which a motion under 
        subsection (a) relates to the extent necessary to carry out 
        proceedings under this section.
            ``(3) Appointment of counsel.--The court may appoint 
        counsel for an indigent applicant under this section in 
        accordance with section 3006A of this title.
    ``(c) Order for DNA Testing.--The court shall order the DNA testing 
requested in a motion filed under this section if--
            ``(1) the motion satisfies the requirements of subsection 
        (a);
            ``(2)(A) the identity of the perpetrator was at issue in 
        the trial that resulted in the conviction of the applicant; or
            ``(B) in a case where the applicant pled guilty, the 
        identity of the perpetrator would have been at issue at trial;
            ``(3) the evidence to be tested is in the possession of the 
        government and has been subject to a chain of custody and 
        retained under conditions sufficient to ensure that it has not 
        been substituted, contaminated, tampered with, replaced, or 
        altered in any respect material to the requested DNA testing;
            ``(4)(A)(i) the technology for the requested DNA testing 
        was not available at the time of trial;
            ``(ii) it was not generally known that such technology was 
        available; or
            ``(iii) the applicant can show that the failure to request 
        such testing was due to the deficient performance of the 
        attorney of the applicant; and
            ``(B) if any of the evidence was previously subjected to 
        DNA testing, the testing now requested uses a newer DNA testing 
        technique which is reasonably certain to provide results that 
        are substantially more accurate and probative than any previous 
        DNA testing of the evidence;
            ``(5) the proposed DNA testing uses scientifically sound 
        methods and is consistent with accepted forensic practice;
            ``(6) the proposed DNA testing is reasonable in scope; and
            ``(7) the court determines, after review of the record of 
        the trial of the applicant and any other relevant evidence, 
        that there is a reasonable probability that the results of the 
        proposed DNA testing will enable the applicant to establish 
        that the applicant is entitled to a new trial under the 
        standard of subsection (e)(3).
    ``(d) Testing Procedures; Reporting of Test Results.--
            ``(1) Testing procedures.--The court shall direct that any 
        DNA testing ordered under this section be carried out by--
                    ``(A) a laboratory mutually selected by the 
                government and the applicant; or
                    ``(B) if the government and the applicant are 
                unable to agree on a laboratory, a laboratory selected 
                by the court ordering the testing.
            ``(2) Laboratory approval.--With respect to DNA testing by 
        a laboratory in accordance with this subsection, other than an 
        FBI laboratory, the court must approve the selection of the 
        laboratory and make all necessary orders to ensure the 
        integrity of the evidence and the testing process and the 
        reliability of the test results.
            ``(3) Laboratory costs.--The applicant shall pay the cost 
        of any testing by a laboratory in accordance with this 
        subsection, other than an FBI laboratory, except that the court 
        shall pay, in accordance with section 3006A of this title, the 
        cost if the applicant would otherwise be financially incapable 
        of securing such testing.
            ``(4) Disclosure of test results.--The results of any DNA 
        testing ordered under this section--
                    ``(A) shall be disclosed to--
                            ``(i) the court;
                            ``(ii) the applicant;
                            ``(iii) the government; and
                            ``(iv) the appropriate agency under 
                        subsection (e)(3)(B)(ii); and
                    ``(B) shall be included in the Combined DNA Index 
                System if the conditions set forth in subsection (e)(2) 
                are met.
    ``(e) Posttesting Procedures.--
            ``(1) Inconclusive result.--If the DNA testing results are 
        inconclusive, the court may order further testing, as 
        appropriate, or may deny the applicant relief.
            ``(2) Positive result.--If DNA testing results obtained 
        under this section show that the applicant was the source of 
        the DNA identified as evidence under subsection (a)(2)(B), the 
        court shall--
                    ``(A) deny the applicant relief;
                    ``(B) submit the DNA testing results to the 
                Department of Justice for inclusion in the Combined DNA 
                Index System; and
                    ``(C) on motion of the government, proceed as 
                provided in paragraph (5)(A).
            ``(3) Negative result.--If DNA testing results obtained 
        under this section show that the applicant was not the source 
        of the DNA identified as evidence under subsection (a)(2)(B)--
                    ``(A) the court shall promptly--
                            ``(i) order any further DNA testing needed 
                        to clarify the import of the test results, 
                        including any testing needed to exclude persons 
                        other than the perpetrator of the crime as 
                        potential sources of the DNA evidence; and
                            ``(ii) determine whether the applicant is 
                        entitled to relief under paragraph (4); and
                    ``(B) the Attorney General shall--
                            ``(i) compare the DNA evidence collected 
                        from the applicant with DNA evidence in the 
                        Combined DNA Index System that has been 
                        collected from unsolved crimes;
                            ``(ii) if the comparison yields a DNA match 
                        with an unsolved crime, notify the appropriate 
                        agency and preserve the DNA sample; and
                            ``(iii) if the comparison fails to yield a 
                        DNA match with an unsolved crime, destroy the 
                        DNA sample collected from the applicant.
            ``(4) Exculpatory evidence.--If the DNA testing conducted 
        under this section produces exculpatory evidence--
                    ``(A) the applicant may, during the 60-day period 
                beginning on the date on which the applicant is 
                notified of the test results, make a motion to the 
                court that ordered the testing for a new trial based on 
                newly discovered evidence under rule 33 of the Federal 
                Rules of Criminal Procedure, notwithstanding any 
                provision of law that would bar such a motion as 
                untimely; and
                    ``(B) upon receipt of a motion under subparagraph 
                (A), the court that ordered the testing shall consider 
                the motion under rule 33 of the Federal Rules of 
                Criminal Procedure, notwithstanding any provision of 
                law that would bar such consideration as untimely.
            ``(5) Failure to obtain relief.--
                    ``(A) In general.--If the applicant fails to obtain 
                relief under this subsection, the court, on motion by 
                the government, shall make a determination whether the 
                assertion of innocence by the applicant was false.
                    ``(B) False assertion.--If the court finds that the 
                assertion of innocence by the applicant was false, the 
                court--
                            ``(i) may hold the applicant in contempt;
                            ``(ii) shall assess against the applicant 
                        the cost of any DNA testing carried out under 
                        this section; and
                            ``(iii) shall forward the finding to the 
                        Director of the Bureau of Prisons.
                    ``(C) Bureau of prisons.--On receipt of a finding 
                by the court under this paragraph, the Director of the 
                Bureau of Prisons may deny, wholly or in part, the good 
                conduct credit authorized under section 3624 of this 
                title, on the basis of that finding.
                    ``(D) Parole commission.--If the applicant is 
                subject to the jurisdiction of the United States Parole 
                Commission, the court shall forward its finding under 
                this paragraph to the Parole Commission, and the Parole 
                Commission may deny parole on the basis of that 
                finding.
                    ``(E) Penalty.--In any prosecution of an applicant 
                under chapter 79 of this title, for false assertions or 
                other conduct in proceedings under this section, the 
                court, upon conviction of the applicant, shall sentence 
                the applicant to a term of imprisonment of 1 year, 
                which shall run consecutively to any other term of 
                imprisonment the applicant is serving.
    ``(f) Final Order.--An order granting or denying DNA testing under 
subsection (c), or an order granting or denying a new trial under 
subsection (e), is a final order for purposes of section 1291 of title 
28.
    ``(g) Time Limits Inapplicable; Other Remedies Unaffected.--
Notwithstanding any time limit otherwise applicable to motions for new 
trials based on newly discovered evidence, a court may grant relief 
under subsection (e) to an applicant, at any time.
    ``(h) Other Remedies Unaffected.--This section does not affect the 
circumstances under which a person may obtain DNA testing or 
postconviction relief under any other law or rule.
``Sec. 3600A. Prohibition on destruction of biological
              material
    ``(a) Prohibition.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, during the period described in paragraph (2), the 
        government shall not destroy any biological material preserved 
        if the defendant is serving a term of imprisonment following 
        conviction in a case.
            ``(2) Period described.--The period described in this 
        paragraph is the period beginning on the date of enactment of 
        this section and ending on the later of--
                    ``(A) the expiration of the 60-month period 
                beginning on that date of enactment; or
                    ``(B) the date on which any proceedings under 
                section 3600 relating to the case are completed.
    ``(b) Sanctions for Intentional Violation.--The court may impose 
appropriate sanctions, including criminal contempt, for an intentional 
violation of subsection (a).
    ``(c) Exceptions.--The government may dispose of evidence before 
the expiration of the period of time described in subsection (a) if--
            ``(1) other than subsection (a), no statute, regulation, 
        court order, or other provision of law requires that the 
        evidence be preserved; and
            ``(2)(A)(i) the government notifies any person who remains 
        incarcerated in connection with the investigation or 
        prosecution and any counsel of record for that person (or, if 
        there is no counsel of record, the public defender for the 
        judicial district in which the conviction for that person was 
        imposed), of the intention of the government to dispose of the 
        evidence and the provisions of this chapter; and
            ``(ii) the government affords such person not less than 180 
        days after such notification to make a motion under section 
        3600(a) for DNA testing of the evidence; or
            ``(B)(i) the evidence must be returned to its rightful 
        owner, or is of such a size, bulk, or physical character as to 
        render retention impracticable; and
            ``(ii) the government takes reasonable measures to remove 
        and preserve portions of the material evidence sufficient to 
        permit future DNA testing.''.
            (2) Technical and conforming amendment.--The analysis for 
        part II of title 18, United States Code, is amended by 
        inserting after the item relating to chapter 228 the following:

``228A.  Postconviction DNA Testing.........................    3600''.
    (b) Applicability.--The provisions and amendments in this section 
shall take effect on the date of enactment of this Act and shall apply 
with respect to any offense committed, and to any judgment of 
conviction entered, before, on, or after that date of enactment.
    (c) Report by the Attorney General.--
            (1) Tracking system.--
                    (A) In general.--The Attorney General shall 
                establish a system for reporting and tracking motions 
                under section 3600 of title 18, United States Code.
                    (B) Requested assistance.--The judicial branch 
                shall provide to the Attorney General any requested 
                assistance in operating a reporting and tracking system 
                and in ensuring the accuracy and completeness of 
information included in that system.
            (2) Information.--Not later than 180 days before the 
        expiration of the time period referenced in section 
        3600(a)(3)(A) of title 18, United States Code, the Attorney 
        General shall submit a report to Congress containing--
                    (A) a summary of the motions filed under section 
                3600 of title 18, United States Code;
                    (B) information on whether DNA testing was ordered 
                pursuant to such motions;
                    (C) information on whether the applicant obtained 
                relief on the basis of DNA test results; and
                    (D) information on whether further proceedings 
                occurred following a granting of relief and the outcome 
                of those proceedings.
            (3) Assessment.--The report submitted under paragraph (2) 
        may also include--
                    (A) any other information that the Attorney General 
                believes will be useful in assessing the operation, 
                utility, or costs of section 3600 of title 18, United 
                States Code; and
                    (B) any recommendations that the Attorney General 
                may have relating to future legislative action 
                concerning section 3600 of title 18, United States 
                Code.

SEC. 202. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH AMENDMENT.

    (a) Application for DNA Testing.--No State shall deny an 
application for DNA testing made by a prisoner in State custody who 
would be eligible for such testing under the provisions of sections 
3600 and 3600A of title 18, United States Code.
    (b) DNA Testing Procedures.--The procedures for DNA testing for a 
prisoner in State custody shall be substantially similar to the DNA 
testing procedures established for Federal courts under sections 3600 
and 3600A of title 18, United States Code.
    (c) Remedy.--A prisoner in State custody may enforce subsections 
(a) and (b) in a civil action for declaratory or injunctive relief, 
filed either in a State court of general jurisdiction or in a district 
court of the United States, naming an executive or judicial officer of 
the State as a defendant.

TITLE III--MANDATORY MINIMAL DEFENSE COUNSEL STANDARDS IN STATE COURTS 
                           FOR CAPITAL CASES

SEC. 301. RIGHT TO LEGAL REPRESENTATION FOR INDIGENT DEFENDANTS.

    (a) Preconviction Representation.--Notwithstanding any other 
provision of law, a defendant in a criminal action in a State court, 
which may result in punishment by death, who is or becomes financially 
unable to obtain adequate representation or investigative, expert, or 
other reasonably necessary services at any time--
            (1) before judgment; or
            (2) after the entry of a judgment imposing a sentence of 
        death, but before the execution of that judgment;
shall be entitled to the appointment of 1 or more attorneys and the 
furnishing of such other services in accordance with the provisions of 
this title.
    (b) Postconviction Representation.--In a postconviction proceeding 
in which a defendant seeks to vacate or set aside a death sentence, a 
defendant who is or becomes financially unable to obtain adequate 
representation or investigative, expert, or other reasonably necessary 
services shall be entitled to the appointment of 1 or more attorneys 
and the furnishing of such other services in accordance with the 
provisions of this title.

SEC. 302. MINIMUM EXPERIENCE REQUIRED FOR DEFENSE COUNSEL.

    (a) Prejudgment Appointment.--
            (1) In general.--If the appointment of legal counsel under 
        this title is made before judgment, at least 1 attorney so 
        appointed--
                    (A) must have been admitted to practice for not 
                less than 5 years in the court in which the prosecution 
                is to be tried; and
                    (B) must have not less than 3 years experience in 
                the actual trial of felony prosecutions in that court.
            (2) Judicial appointment.--The court before which the 
        defendant is to be tried, or a judge thereof, shall promptly, 
        upon the request of the defendant, assign 2 attorneys to the 
        case.
            (3) Expertise; accessibility.--At least 1 of the attorneys 
        assigned under paragraph (2)--
                    (A) shall be learned in the law applicable to 
                capital cases; and
                    (B) shall have free access to the accused at all 
                reasonable hours.
            (4) Recommendation.--In assigning counsel under this 
        section, the court shall consider--
                    (A) the recommendation of the State public defender 
                organization, community defender organization, or 
                equivalent organization; or
                    (B) if no such organization exists in the relevant 
                jurisdiction, the administrative office of the local 
                court or any governmental entity, bar association, or 
                organization with knowledge regarding the skills and 
                qualifications of local defense counsel.
            (5) Witnesses.--The court shall allow a defendant, under 
        this title, to produce lawful witnesses to testify in support 
        of the defendant, and shall compel such witnesses to appear at 
        trial in the same manner that witnesses are compelled to appear 
        on behalf of the prosecution.
    (b) Postjudgment Appointment.--If the appointment is made after 
judgment, at least 1 attorney appointed shall--
            (1) have been admitted to practice for not less than 5 
        years in the appropriate State appellate court;
            (2) have not less than 3 years experience in the handling 
        of felony appeals in that court; and
            (3) be learned in the law applicable to capital cases.
    (c) Learned Standard.--In determining whether an attorney is 
learned in the law of capital cases under this section, the State court 
shall apply the standard used in the courts of the United States.

SEC. 303. ADEQUATE REPRESENTATION.

    (a) Appointment of Substitute Counsel.--With respect to this 
section, the court, for good cause, may appoint another attorney whose 
background, knowledge, or experience would otherwise enable the 
attorney to properly represent the defendant, with due consideration to 
the seriousness of the possible penalty and to the unique and complex 
nature of the litigation.
    (b) Scope of Legal Representation.--Unless replaced by similarly 
qualified counsel upon the motion of the attorney or the defendant, 
each attorney appointed under this title shall represent the defendant 
throughout every stage of available judicial proceedings, including--
            (1) pretrial motions and procedures;
            (2) competency proceedings;
            (3) trial;
            (4) sentencing;
            (5) executive and other clemency proceedings;
            (6) motions for new trial;
            (7) appeals;
            (8) applications for stays of execution; and
            (9) applications for writ of certiorari to the Supreme 
        Court of the United States.
    (c) Additional Services.--
            (1) In general.--Upon a finding that investigative, expert, 
        or other services are reasonably necessary for the 
        representation of the defendant, whether in connection with 
        issues relating to guilt or the sentence, the court may 
        authorize the attorneys for the defendant to obtain such 
        services on behalf of the defendant and, if so authorized, 
        shall order the payment of fees and expenses for such services 
        pursuant to section 304.
            (2) Ex parte communications.--No ex parte proceeding, 
        communication, or request may be considered pursuant to this 
        section unless a proper showing is made concerning the need for 
        confidentiality. Any such proceeding, communication, or request 
        shall be transcribed and made a part of the record available 
        for appellate review.

SEC. 304. ATTORNEY FEES AND COSTS.

    (a) Attorney Fees.--Compensation shall be paid to attorneys 
appointed under this title at a rate equivalent to that of attorneys 
representing defendants in Federal capital cases pursuant to section 
408(q)(10)(A) of the Controlled Substances Act (21 U.S.C. 
848(q)(10)(A)).
    (b) Additional Expenses.--Fees and expenses paid for investigative, 
expert, and other reasonably necessary services authorized under this 
section shall be equivalent to fees paid in Federal capital cases 
pursuant to section 408(q)(10)(B) of the Controlled Substances Act (21 
U.S.C. 848(q)(10)(B)).
    (c) Public Disclosure.--The amounts paid for services under this 
section shall be disclosed to the public, after the disposition of the 
petition.

SEC. 305. IRREBUTTABLE PRESUMPTION OF DEFICIENT PERFORMANCE.

    (a) In General.--In a proceeding in Federal court pursuant to 
section 2254 of title 28, United States Code, the failure to comply 
with the procedures of this title shall create an irrebuttable 
presumption that the performance of the counsel for the petitioner was 
deficient.
    (b) Entitlement to Relief; Burden of Proof; Standard of Review.--A 
petitioner is not entitled to relief unless the petitioner shows that 
the result of the proceeding would have been different if the 
performance of the counsel for the petitioner had not been deficient. 
The party opposing the petition has the burden of establishing that the 
standards in this section have been met. The court shall conduct a de 
novo review to settle this issue.
    (c) Other Remedies.--The provisions of this section are not 
intended to limit any other Federal or State court from enforcing this 
section by any other appropriate remedy.
                                 <all>