[Congressional Record Volume 151, Number 168 (Thursday, December 22, 2005)]
[Extensions of Remarks]
[Pages E2639-E2640]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      CONFERENCE REPORT ON H.R. 3199, USA PATRIOT IMPROVEMENT AND 
                      REAUTHORIZATION ACT OF 2005

                                 ______
                                 

                               speech of

                            HON. JEFF FLAKE

                               of arizona

                    in the house of representatives

                      Wednesday, December 14, 2005

  Mr. FLAKE. Madam Speaker, I would like to comment on section 507 of 
today's PATRIOT Act conference report, which authorizes the U.S. 
Attorney General to certify whether a state has qualified for the 
expedited habeas corpus procedures in chapter 154 of title 28 of the 
U.S. Code. Section 507 is of particular importance to my home State of 
Arizona, which for many years has satisfied the post-conviction counsel 
requirements of chapter 154, but which has been unfairly denied the 
procedural benefits of that chapter by the Ninth Circuit.
  Section 507 is similar to a section of the Streamlined Procedures 
Act, a general habeas corpus reform bill that was introduced earlier 
this year in the House by Mr. Lungren of California, and in the Senate 
by my Home state colleague, Senator Kyl. Section 507 is also virtually 
identical to an amendment that I filed and sought to offer last month 
to H.R. 1751, the Secure Access to Justice and Court Security Act of 
2005. My amendment had been made in order by the Rules Committee and 
was listed in House Report 109-279. At the last minute, however, 
various political objections were made to my amendment and Chairman 
Sensenbrenner asked me not to offer it to H.R. 1751. The Chairman 
assured me that he would accommodate me with regard to this matter on 
some other legislation. I am pleased to see that he was able to do so 
on the PATRIOT Act, which now appears that it will be enacted into law 
sooner than H.R. 1751.
  My amendment is designed to give States a real incentive to provide 
quality counsel to death row prisoners in State habeas proceedings. It 
is also designed to keep a bargain that the Federal Government made 
with the States in 1996. The amendment assigns the U.S. Attorney 
General to evaluate whether a State is providing qualified counsel to 
capital prisoners in State habeas proceedings, a condition for 
receiving the benefits of the expedited habeas procedures of chapter 
154 of the U.S. Code. The amendment thus gives States a real chance to 
qualify for chapter 154 treatment. By ensuring that States will receive 
streamlined proceedings in Federal court if they provide quality 
counsel in State habeas court, the amendment will reduce delays in 
death penalty appeals.
  This is a goal that everyone, left and right, should agree with. Even 
those who passionately oppose the death penalty should want the system 
to be fair to victims. No one should support a system that routinely 
forces the family of a murder victim to endure 10, 15, or even 20 years 
of appeals. Yet in too many cases, that is exactly how our current 
system works even in cases where there is no real dispute over guilt. 
In my home State of Arizona, over two-thirds of death row prisoners 
have finished all of their State appeals and are engaged in Federal 
habeas litigation. Most of these cases have now been in the Federal 
courts for five years or more. Ten cases have been in Federal court for 
8 years or more, and 5 cases have been in Federal court for more than 
15 years. And this is all on top of the time that it takes to complete 
all state appeals, which usually requires 5 or 6 years.
  Under the current system, victims' families are forced to repeatedly 
relive an awful event throughout the progress of this lengthy 
litigation. During that process, they must wonder if they will be 
forced to appear at another hearing, if there will be another trial, or 
if the person who killed their son or daughter will even be released. 
They literally are denied closure, the right to forget about the person 
who killed their loved one and to move on with their lives. And this 
frequently goes on for more than 15 years. A system that treats crime 
victims this way is intolerable.

  The amendment that I offer today is particularly important to my home 
State of Arizona. Arizona is both a State that has experienced extreme 
delays in Federal-court review of capital cases, and a State that has 
acted to provide quality counsel in state habeas proceeding in response 
to the offer that the congress made in 1996. The habeas reform of that 
year created chapter 154 of title 28. This chapter told the States 
that, if they provide qualified state habeas counsel to capital 
defendants, the Federal government would streamline Federal court 
review of capital cases. In Federal court, chapter 154 would limit the 
claims that defendants could raise, barring virtually all claims that 
were not properly raised and addressed on the merits in state court. 
Chapter 154 would apply strict deadlines to Federal court review, 
requiring the district court to decide the case in 6 months and the 
court of appeals to rule in 4 months.
  Shortly after the 1996 reforms were enacted, the Arizona legislature 
and the State supreme court implemented a system that would allow the 
State to opt in to chapter 154. The State created mandatory competency 
standards for capital post-conviction counsel, and provided funds to 
attract good lawyers and allow them to hire necessary experts. The 
State now spends a lot of money on post-conviction representation for 
death-row inmates--the median case costs the State $64,000, while one 
case cost $138,000. Again, this is just for State habeas review. It 
does not include the State's expenses to provide counsel at trial or on 
direct appeal from the trial. For example, Arizona also guarantees a 
capital defendant two highly qualified attorneys at trial.
  One might think that, in light of all that the State of Arizona has 
done to provide high-quality counsel to capital defendants, surely it 
must have qualified for chapter 154 by now and must be enjoying the 
benefits of that chapter. But that is not what has happened. The 
problem is simple: under current law, the local Federal court of 
appeals decides whether a State has opted in to chapter 154. In 
Arizona, the Ninth Circuit has refused to grant Arizona the benefits of 
chapter 154. Even though Arizona has lived up to its end of the 
bargain, the Ninth Circuit refuses to allow the Federal government to 
abide by its end of the deal.
  A case that illustrates the problem is the Ninth Circuit's 
extraordinary decision in Spears v. Stewart, 283 F.3d 992 (2002). The 
three-judge panel in Spears found that Arizona's system for providing 
post-conviction counsel complied with chapter 154. The court concluded 
that Arizona's system sets mandatory and binding competency standards 
for counsel, provides reasonable compensation to counsel, pays 
reasonable litigation expenses, and offers such counsel to all capital 
defendants. The court nevertheless managed to find that Arizona could 
not receive the benefits of chapter 154 because of a delay in 
appointing counsel. Defense lawyers initially had boycotted this 
system, and in some cases this resulted in delays. The defendant in 
Spears did not even allege that this delay prejudiced his case. But the 
Ninth Circuit found this delay a sufficient excuse to deny Arizona the 
benefit of chapter 154, even though Arizona's system complied with that 
chapter.

  The decision of the Spears three-judge panel alone is troubling. The 
chapter 154 qualification decision is supposed to be a one-time 
decision. Once a State's system qualifies, the issue is not supposed to 
be litigated again on a case-by-case basis. Even more disturbing than 
the three-judge panel's decision, however, is a dissent from the full 
court's refusal to rehear the case that was signed by 11 active judges 
of the Ninth Circuit. These 11 judges stated that the panel's decision 
that Arizona's system qualifies for chapter 154 is merely dicta and not 
binding in future cases. Although the issue of Arizona's 154 status was 
squarely before the three-judge panel and was decided by that panel, 
this gang of 11 judges declared that they would not follow that 
decision in future cases. As they said: ``To put it bluntly, neither 
we, nor any other court is bound by the panel's advisory declarations 
in this case.'' Spears, 283 F.3d at 998 (Reinhardt, J., dissenting from 
denial of rehearing).
  A statement by 11 judges that they will refuse to follow their own 
court's final decision itself is extraordinary, as several other judges 
noted in Spears a concurrence to the denial of rehearing. If a court 
refuses to abide by its own precedents, litigants can have no way of 
knowing what the law is and how they should

[[Page E2640]]

arrange their affairs. Such behavior does substantial damage to the 
rule of law.
  What such behavior also demonstrates is a refusal to enforce the laws 
enacted by Congress. It shows that chapter 154 will remain a dead 
letter so long as the obligation to enforce it remains in the hands of 
courts such as the Ninth Circuit. It is clear that, if any two of the 
11 judges who joined the Spears rehearing dissent are assigned to a 
future Arizona 154 case, they will not feel obligated to follow Spears 
and the State will be relitigating the issue of its 154 status from 
scratch. Indeed, portions of the Spears dissent argue that Arizona's 
``statutory scheme did not comply with Chapter 154's requirements.'' 
Spears, 283 F.3d at 1002 (Reinhardt, J., dissenting from denial of 
rehearing). The tone of the 11-judge dissent also betrays an open 
hostility to the chapter 154 system.
  The trouble with chapter 154 is that the courts assigned to decide 
when it applies are the same courts that would be bound by the 
chapter's strict deadlines if a State is found to qualify. Simply put, 
the regional courts of appeals have a conflict of interest. They decide 
whether the States are entitled to a benefit which places a burden on 
the courts themselves. Some prosecutors also believe that refusal to 
enforce chapter 154 also reflects a hostility to the death penalty--
that some judges are ignoring the law because they do not want to see 
death sentences carried out. If this is true, it is absolutely 
unacceptable. A judge has an obligation to uphold and enforce a valid 
law, whether or not he agrees with it.
  My amendment makes several changes to chapter 154 to ensure that it 
provides real and meaningful benefits to States that provide quality 
post-conviction counsel. First and most importantly, it assigns the 154 
certification decision to the U.S. Attorney General and the DC Circuit, 
rather than the local courts of appeals that have an interest in the 
case. The Attorney General receives no benefits from chapter 154, and 
he has expertise in evaluating State criminal justice systems. Just 
last year, for example, Congress assigned the Attorney General to 
evaluate State DNA testing and capital counsel systems in the Justice 
for All Act. Review of the Attorney General's decision in the DC 
Circuit also is appropriate. Because there is no Federal habeas review 
of criminal convictions in the District of Columbia, the DC Circuit 
also has no stake in whether or not a State qualifies for chapter 154.

  My amendment, like subsection (d) of section 507, also makes clear 
that a determination that a State has satisfied the chapter 154 
standard as of a particular date will apply retroactively to all 
pending habeas cases for which the prisoner received State habeas after 
the certified date. This will ensure that a State will receive all of 
the procedural and litigation benefits that it should have received had 
the Federal habeas claim been governed by chapter 154 from the day that 
it was filed, as it should have been. The proposed paragraph 28 U.S.C. 
2265(a)(2) in my amendment makes clear that, once the Attorney General 
determines that a State established a post-conviction capital-counsel 
system by a particular date, the chapter 154 eligibility certification 
shall be effective as of that date. Thus, if a capital prisoner 
received State habeas counsel after that effective date, the case is 
governed by chapter 154 in Federal proceedings.
  However, some courts might construe 2265(a)(2) to mean that while the 
chapter 154 system thereafter governs Federal habeas applications that 
have already been filed, the actual procedural benefits of that 
chapter--especially the claims limitations and amendment limits would 
only apply on a going-forward basis--i.e., only to claims or amendments 
filed after the date of enactment of this law. Thus when I added a few 
other provisions to the amendment, I also inserted subsection (g), 
which is the same as subsection (d) of section 507. This subsection, by 
explicitly applying section 507 and the changes that it makes to all 
qualified pending Federal habeas cases, should make clear that when 
Congress says that it wants the new law to apply retroactively, it 
means that the law will apply retroactively--that it will govern new 
claims as if it had been in effect as of the effective date of the 
chapter 154 certification.
  Any non-retroactive application of chapter 154 would be fundamentally 
unfair to States such as Arizona, which has been providing post-
conviction counsel to State prisoners for nearly a decade but has been 
inappropriately denied the benefits of chapter 154 for some cases that 
already have progressed to Federal habeas. In the Spears case, for 
example, the Ninth Circuit even found that Arizona's counsel system met 
chapter 154 standards, but the court nevertheless came up with an 
excuse for refusing to apply chapter 154 to that case. If the Attorney 
General and the DC Circuit conclude that Arizona met chapter 154 
standards prior to Spears's receipt of counsel, as I am confident that 
they will, Arizona should receive all of the benefits of chapter 154 
for that case and subsequent cases, as if chapter 154 had governed the 
Federal petition as of the day it had been filed (as it should have). 
Chapter 154, for example, does not allow cases to be remanded to State 
court to exhaust new claims (a considerable source of delay on Federal 
habeas), and it places very sharp limits on amendment to petitions. 
Arizona should not be forced to litigate claims in Spears's petition 
that were defaulted, that were unexhausted and sent back to State 
court, or that otherwise were not addressed by State courts when Spears 
first filed the petition (unless those claims meet the narrow 
exceptions in subsection 2264(a)). Nor should the State be forced to 
litigate claims that were added to the petition in amendments that do 
not satisfy chapter 154's limits on amendments.

  Applying chapter 154 retroactively may seem harsh, but it is 
important to recall that any prisoner whose Federal petition will be 
governed by 154 necessarily received counsel in State post-conviction 
proceedings. Unlike the typical uncounseled State habeas petitioner, 
who may not have been aware of State procedural rules or of all the 
potential legal claims available to him, a chapter 154 habeas 
petitioner will have no excuse for not making sure that all of his 
claims were addressed on the merits in State court. (Or rather, any 
excuse will be limited to those authorized in 28 U.S.C. 2264(a).) I 
believe that, given the resources Arizona has devoted to providing 
post-conviction counsel, the State should easily qualify for chapter 
154. The Ninth Circuit has treated Arizona unfairly by denying it 
chapter 154 status. If the U.S. Attorney General and DC Circuit agree 
that Arizona should have been 154-certified when Spears filed his 
Federal petition, Arizona should be placed in the same position that it 
would be in today had the Spears case proceeded under chapter 154 from 
the beginning.
  My amendment also extends the time for a district court to rule on a 
154 petition from 6 months to 15 months. I have been informed that the 
bill that became the 1996 Act originally adopted 6 months as the limit 
as an initial bargaining position. The intention had been to eventually 
extend this to 12 months, but because of the politics of the enactment 
of AEDPA, it was not possible to change this deadline later in the 
legislative process. My amendment is even more generous than the 
original authors' intention, giving the district courts 15 months, in 
recognition of their burdensome caseloads and the fact that they do the 
real work in Federal habeas cases--they are the courts that hold 
hearings, if necessary, to identify the truth of a case. This same 
change was included in subsection (e) of section 507.
  Subsection (f) of section 507 is the same as a provision in 
subsection (e) of my amendment. This subsection codifies the rule of 
McFarland v. Scott, 512 U.S. 849 (1994), which allows a stay to issue 
on the basis of an application for appointment of Federal habeas 
counsel (without the actual filing of a petition), but it limits such 
stays to a reasonable period after counsel is actually appointed or the 
application for appointment of counsel is withdrawn or denied.

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