[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1088 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                S. 1088

  To establish streamlined procedures for collateral review of mixed 
  petitions, amendments, and defaulted claims, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 19, 2005

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

_______________________________________________________________________

                                 A BILL


 
  To establish streamlined procedures for collateral review of mixed 
  petitions, amendments, and defaulted claims, 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 ``Streamlined 
Procedures Act of 2005''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Mixed petitions.
Sec. 3. Amendments to petitions.
Sec. 4. Procedurally defaulted claims.
Sec. 5. Tolling of limitation period.
Sec. 6. Harmless error in sentencing.
Sec. 7. Unified review standard.
Sec. 8. Appeals.
Sec. 9. Capital cases.
Sec. 10. Clemency and pardon decisions.
Sec. 11. Ex parte funding requests.
Sec. 12. Crime victims' rights.
Sec. 13. Technical corrections.
Sec. 14. Application to pending cases.

SEC. 2. MIXED PETITIONS.

    Section 2254(b) of title 28, United States Code, is amended--
            (1) in paragraph (1), by striking subparagraphs (A) and (B) 
        and inserting the following:
            ``(A) the applicant--
                    ``(i) has exhausted the remedies available in the 
                courts of the State by fairly presenting and arguing 
                the specific Federal basis for each claim in the State 
                courts; and
                    ``(ii) has described in the application how the 
                applicant has exhausted each claim in the State courts; 
                or
            ``(B)(i) the application presents a claim for relief that 
        would qualify for consideration on the grounds described in 
        subsection (e)(2); and
            ``(ii) the denial of such relief is contrary to, or would 
        entail an unreasonable application of, clearly established 
        Federal law, as determined by the Supreme Court of the United 
        States.''; and
            (2) by adding at the end the following:
    ``(4) Any unexhausted claim that does not qualify for consideration 
on the grounds described in this subsection shall be dismissed with 
prejudice.''.

SEC. 3. AMENDMENTS TO PETITIONS.

    (a) In General.--Section 2244 of title 28, United States Code, is 
amended by adding at the end the following:
    ``(e)(1) An application for a writ of habeas corpus may be amended 
once as a matter of course before the earlier of the date on which an 
answer to the application is filed or the expiration of the 1-year 
period described in subsection (d).
    ``(2) Except as provided under paragraph (1), an application may 
not be amended to modify existing claims or to present additional 
claims, unless the modified or newly presented claims would qualify for 
consideration on the grounds described in subsection (b)(2).''.
    (b) Conforming Amendment.--Section 2242 of title 28, United States 
Code, is amended in the third undesignated paragraph by striking ``in 
the rules of procedure applicable to civil actions'' and inserting 
``under section 2244(e)''.

SEC. 4. PROCEDURALLY DEFAULTED CLAIMS.

    (a) In General.--Section 2254 of title 28, United States Code, is 
amended--
            (1) by redesignating subsections (h) and (i) as subsections 
        (i) and (j), respectively; and
            (2) by adding after subsection (g) the following:
    ``(h)(1) A court, justice, or judge shall not have jurisdiction to 
consider an application for a writ of habeas corpus on behalf of a 
person in custody pursuant to the judgment of a State court with 
respect to any claim that was found by the State court to be 
procedurally barred, or any claim of ineffective assistance of counsel 
related to such claim, unless--
            ``(A) the claim would qualify for consideration on the 
        grounds described in subsection (e)(2); or
            ``(B) the State, through counsel, expressly waives the 
        provisions of this paragraph.
    ``(2)(A) A court, justice, or judge shall not have jurisdiction to 
consider any claim that the State court denies on the merits and on the 
ground that the claim was not properly raised under State procedural 
law, or any claim of ineffective assistance of counsel related to such 
claim, unless the claim would qualify for consideration on the grounds 
described in subsection (e)(2).
    ``(B) A court, justice, or judge shall not have jurisdiction to 
consider any claim that is otherwise subject to paragraph (1) and that 
was reviewed by the State court for plain error, fundamental error, or 
under a similarly heightened standard of review, unless the claim would 
qualify for consideration on the grounds described in subsection 
(e)(2).
    ``(3) The State shall not be required to answer any claim described 
in paragraph (1) or (2) unless the court first determines that the 
claim would qualify for consideration on the grounds described in 
subsection (e)(2).
    ``(4) If a court determines that a State court order denying relief 
on procedural grounds is ambiguous as to which claims were found to be 
procedurally barred, the court shall resolve any perceived ambiguity, 
if necessary, by examining the full record in the State court.
    ``(5) An application for a writ of habeas corpus on behalf of a 
person in custody pursuant to the judgment of a State court shall not 
be granted with respect to any claim under paragraph (1) or (2) unless 
the denial of such relief is contrary to, or would entail an 
unreasonable application of, clearly established Federal law, as 
determined by the Supreme Court of the United States.''.
    (b) Limitation.--Section 2244(d)(2) of title 28, United States 
Code, as amended by section 3, is amended by adding at the end the 
following: ``An application that was otherwise improperly filed in 
State court shall not be deemed to have been properly filed because the 
State court exercises discretion in applying a rule or recognizes 
exceptions to that rule.''.

SEC. 5. TOLLING OF LIMITATION PERIOD.

    Section 2244(d) of title 28, United States Code, is amended--
            (1) in paragraph (2), by striking ``judgment or''; and
            (2) by adding at the end the following:
    ``(3) In this section, an application for State post-conviction or 
other collateral review--
            ``(A) is pending from the date on which the application is 
        filed with a State court until the date on which the same State 
        court rules on that application; and
            ``(B) is not pending during any period of time between the 
        date on which a State court rules on that application and the 
        date on which the application or a related application is 
        filed, or is otherwise presented, for adjudication to such 
        State court on rehearing authorized by State law or to a higher 
        State court.
    ``(4) The period of limitation under paragraph (1) may be tolled, 
suspended, or extended only as provided under this subsection.''.

SEC. 6. HARMLESS ERROR IN SENTENCING.

    Section 2254 of title 28, United States Code, as amended by section 
4, is amended by adding at the end the following:
    ``(k) A court, justice, or judge shall not have jurisdiction to 
consider an application with respect to an error relating to the 
applicant's sentence or sentencing that has been found to be harmless 
or not prejudicial in State court proceedings, unless a determination 
that the error is not structural is contrary to clearly established 
Federal law, as determined by the Supreme Court of the United 
States.''.

SEC. 7. UNIFIED REVIEW STANDARD.

    Section 107(c) of the Antiterrorism and Effective Death Penalty Act 
of 1996 (28 U.S.C. 2261 note) is amended by striking ``Chapter 154 of 
title 28, United States Code (as amended by subsection (a))'' and 
inserting ``This title and the amendments made by this title''.

SEC. 8. APPEALS.

    (a) Appellate Time Limits.--Section 2254 of title 28, United States 
Code, as amended by sections 4 and 6, is further amended by adding at 
the end the following:
    ``(l) In review by a court of appeals of a district court's 
determination of an application for a writ of habeas corpus on behalf 
of a person in custody pursuant to the judgment of a State court, the 
following shall apply:
            ``(1) A timely filed notice of appeal from an order issuing 
        a writ of habeas corpus shall operate as a stay of that order, 
        pending final disposition of the appeal.
            ``(2) A court of appeals shall decide the appeal from an 
        order granting or denying a writ of habeas corpus--
                    ``(A) not later than 300 days after the date on 
                which the brief of the appellee is filed or, if no 
                timely brief is filed, the date on which such brief is 
                due; or
                    ``(B) if a cross-appeal is filed, not later than 
                300 days after the date on which the appellant files a 
                brief in response to the issues presented by the cross-
                appeal or, if no timely brief is filed, the date on 
                which such brief is due.
            ``(3)(A) If a petition is filed for a panel rehearing or 
        rehearing by the court of appeals en banc following a decision 
        by a panel of a court of appeals under paragraph (2), the court 
        of appeals shall decide whether to grant the petition not later 
        than 90 days after the date on which the petition is filed, 
        unless a response is required.
            ``(B) If a response to a petition is required under 
        subparagraph (A), a court of appeals shall decide whether to 
        grant the petition not later than 90 days after the date on 
        which the response is filed or, if no timely response is filed, 
        the date on which the response is due.
            ``(C) If a panel rehearing is granted, the panel shall make 
        a determination of the appeal on rehearing not later than 120 
        days after the date on which the order granting a panel 
        rehearing is entered. No second or successive petition for 
        panel rehearing shall be allowed.
            ``(D) If rehearing en banc is granted, the court of appeals 
        shall make a final determination of the appeal not later than 
        180 days after the date on which the order granting rehearing 
        en banc is entered.
            ``(4) If a court of appeals fails to comply with the 
        requirements of this subsection, the State may petition the 
        Supreme Court, or a justice thereof, for a writ of mandamus to 
        enforce the requirements of this subsection.
            ``(5) The time limitations in this subsection shall apply 
        in all proceedings in a court of appeals on review of a 
        district court's determination of an application for a writ of 
        habeas corpus, including any such proceedings in a court of 
        appeals following a remand by the Supreme Court for further 
        proceedings.
            ``(6) In proceedings following remand in a court of 
        appeals, the time limit specified in paragraph (2) shall begin 
        on the date the remand is ordered if further briefing is not 
        required in the court of appeals. If there is further briefing 
        in the court of appeals, the time limit specified in paragraph 
        (2) shall begin on the date on which a responsive brief is 
        filed or, if no timely responsive brief is filed, from the date 
        on which such brief is due.
            ``(7) The failure of a court to meet or comply with a time 
        limitation under this subsection shall not be a ground for 
        granting relief from a judgment of conviction or sentence, nor 
        shall the time limitations under this subsection be construed 
        to entitle a capital applicant to a stay of execution, to which 
        the applicant would otherwise not be entitled, for the purpose 
        of litigating any application or appeal.''.
    (b) Finality of Determination.--Section 2244(b)(3)(E) of title 28, 
United States Code, is amended by striking ``the subject of a 
petition'' and all that follows and inserting the following: ``reheard 
in the court of appeals or reviewed by writ of certiorari.''.

SEC. 9. CAPITAL CASES.

    (a) Scope of Review.--Chapter 154 of title 28, United States Code, 
is amended by striking section 2264 and inserting the following:
``Sec. 2264. Scope of Federal review
    ``(a) In General.--Except as provided in subsection (b), a court, 
justice, or judge shall not have jurisdiction to consider any claim 
relating to the judgment or sentence in an application covered under 
this chapter.
    ``(b) Exception.--A court, justice, or judge has jurisdiction to 
consider an application under this chapter if--
            ``(1) the applicant shows that the claim relies on a new 
        rule of constitutional law, made retroactive to cases on 
        collateral review by the Supreme Court, that was previously 
        unavailable; or
            ``(2) both--
                    ``(A) the factual predicate for the claim could not 
                have been discovered previously through the exercise of 
                due diligence; and
                    ``(B) the facts underlying the claim, if proven and 
                viewed in light of the evidence as a whole, would be 
                sufficient to establish by clear and convincing 
                evidence that, but for constitutional error, no 
                reasonable fact finder would have found the applicant 
                guilty of the underlying offense.''.
    (b) Time Limits.--Section 2266(b)(1)(A) of title 28, United States 
Code, is amended by striking ``180 days'' and inserting ``15 months''.
    (c) Review by Attorney General.--
            (1) In general.--Section 2261(b) of title 28, United States 
        Code, is amended--
                    (A) by striking ``(b) This chapter is applicable if 
                a State establishes'' and inserting the following:
    ``(b) This chapter is applicable if--
            ``(1) the Attorney General of the United States certifies 
        that a State has established'';
                    (B) in the first sentence, by striking the period 
                at the end and inserting a semicolon;
                    (C) by striking ``The rule of court or statute must 
                provide standards'' and inserting the following:
            ``(2) the court, statute, or other agency provides 
        standards'';
                    (D) by striking the period at the end and inserting 
                ``; and''; and
                    (E) by adding at the end the following:
            ``(3) the order required under subsection (c) is entered on 
        or after the effective date of the Attorney General's 
        certification under section 2267.''.
            (2) Technical and conforming amendments.--Section 2265(a) 
        of title 28, United States Code, is amended--
                    (A) by striking ``(a) For purposes'' and inserting 
                the following:
    ``(a)(1) For purposes'';
                    (B) by striking ``This chapter shall apply, as 
                provided in this section, in relation to a State 
                unitary review procedure if the State establishes'' and 
                inserting the following:
    ``(2) This chapter shall apply, as provided in this section, in 
relation to a State unitary review procedure if--
            ``(A) the Attorney General of the United States certifies 
        that a State has established'';
                    (C) by striking ``or by statute'' and inserting ``, 
                by statute, or by agency rule'';
                    (D) by striking the period after ``proceedings'' 
                and inserting a semicolon;
                    (E) by striking ``The rule of court or statute must 
                provide'' and inserting the following:
            ``(B) the rule of the court, the statute, or the agency 
        rule provides'';
                    (F) by striking the period at the end and inserting 
                ``; and''; and
                    (G) by adding at the end the following:
            ``(C) the order required under subsection (b) is entered on 
        or after the effective date of the Attorney General's 
        certification under section 2267.''.
    (d) Judicial Review.--Chapter 154 of title 28, United States Code, 
is amended by adding at the end the following:
``Sec. 2267. Judicial Review
    ``(a) In General.--If requested by the chief law enforcement 
officer of a State, the Attorney General of the United States shall 
determine whether the State has established a qualifying mechanism for 
the purpose of section 2261(b)(3) or 2265(a)(2)(C), and, if so, the 
date on which the mechanism was established. The date the mechanism was 
established shall be the effective date of the certification.
    ``(b) Regulations.--The Attorney General shall promulgate 
regulations to implement the certification procedure under subsection 
(a).
    ``(c) Review of Certification.--
            ``(1) In general.--The Attorney General's determination of 
        whether to certify a State under this section is subject to 
        review exclusively as provided under chapter 158.
            ``(2) Venue.--The Court of Appeals for the District of 
        Columbia Circuit shall have exclusive jurisdiction over matters 
        under paragraph (1), subject to review by the Supreme Court 
        under section 2350.
            ``(3) Standard of review.--The Attorney General's 
        determination of whether to certify a State under this section 
        shall be conclusive unless manifestly contrary to the law and 
        an abuse of discretion.''.
    (e) Clerical Amendments.--The table of sections for chapter 154 of 
title 28, United States Code, is amended--
            (1) by striking the item related to section 2264 and 
        inserting the following:

        ``2264. Scope of Federal review.'';
        and
            (2) by adding at the end the following:

        ``2267. Judicial review.''.

SEC. 10. CLEMENCY AND PARDON DECISIONS.

    (a) In General.--Chapter 85 of title 28, United States Code, is 
amended by adding at the end the following:
``Sec. 1370. State clemency and pardon decisions
    ``(a) In General.--Except as provided under subsection (b), and 
notwithstanding any other provision of law, no Federal court shall have 
jurisdiction to hear any cause or claim arising from the exercise of a 
State's executive clemency or pardon power, or the process or 
procedures used under such power.
    ``(b) Exception.--This section does not affect the jurisdiction of 
the Supreme Court to review any decision of the highest court of a 
State that involves a cause or claim arising from the exercise of a 
State's executive clemency or pardon power, or the process or 
procedures used under such power.''.
    (b) Clerical Amendment.--The table of sections for chapter 85 of 
title 28, United States Code, is amended by adding at the end the 
following:

``1370. State clemency and pardon decisions.''.

SEC. 11. EX PARTE FUNDING REQUESTS.

    Section 408(q)(9) of the Controlled Substances Act (21 U.S.C. 
848(q)(9)) is amended--
            (1) by striking ``(9) Upon'' and inserting the following: 
        ``(9) (A) Upon'';
            (2) by striking the last two sentences and inserting the 
        following: ``An application for services under this paragraph 
        shall be decided by a judge other than the judge presiding over 
        the post conviction proceeding under section 2254 or 2255 of 
        Title 28, United States Code, seeking to vacate or set aside a 
        death sentence. Any amounts authorized to be paid under this 
        paragraph shall be disclosed to the public immediately.''; and
            (3) by adding at the end the following:
            ``(B) No ex parte proceeding, communication, or request may 
        be considered in a post-conviction action pursuant to this 
        section, except to the extent necessary to protect any 
        confidential-communications privilege between the defendant and 
        post-conviction counsel. The court shall not grant an 
        application for an ex parte proceeding, communication, or 
        request unless the application has been served upon the 
        respondent and the court has allowed the respondent a 
        reasonable opportunity to answer the application. All 
        proceedings, communications, or requests conducted pursuant to 
        this section shall be transcribed and made a part of the record 
        available for appellate review.''.

SEC. 12. CRIME VICTIMS' RIGHTS.

    Section 3771(b) of title 18, United States Code, is amended by 
adding at the end the following: ``A crime victim shall also be 
afforded the rights established for crime victims by this section in a 
Federal habeas corpus proceeding arising out of a State conviction.''.

SEC. 13. TECHNICAL CORRECTIONS.

    (a) Appeal.--Section 2253(c)(1) of title 28, United States Code, is 
amended by striking ``circuit justice or judge'' and inserting 
``district or circuit judge''.
    (b) Federal Custody.--Section 2255 of title 28, United States Code, 
is amended by designating the 8 undesignated paragraphs as subsections 
(a) through (h), respectively.

SEC. 14. APPLICATION TO PENDING CASES.

    (a) In General.--This Act and the amendments made by this Act shall 
apply to cases pending on and after the date of enactment of this Act.
    (b) Time Limits.--In a case pending on the date of enactment of 
this Act, if the amendments made by this Act establish a time limit for 
taking certain action the period of which began on the date of an event 
that occurred prior to the date of enactment of this Act, the period of 
such time limit shall instead begin on the date of enactment of this 
Act.
                                 <all>