[House Report 104-23]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     104-23
_______________________________________________________________________


 
                  EFFECTIVE DEATH PENALTY ACT OF 1995

                                _______


February 8, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. McCollum, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 729]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 729) to control crime by a more effective death 
penalty, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                           TABLE OF CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     7
Background and Need for Legislation..............................     9
Hearings.........................................................    12
Committee Consideration..........................................    12
Vote of the Committee............................................    12
Committee Oversight Findings.....................................    14
Committee on Government Reform and Oversight.....................    14
New Budget Authority and Tax Expenditures........................    14
Congressional Budget Office Estimate.............................    14
Inflationary Impact Statement....................................    15
Section-by-Section Analysis and Discussion.......................    15
Agency Views.....................................................    19
Changes in Existing Law Made by the Bill, as Reported............    22
Dissenting Views.................................................    34

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

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 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 a 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 on 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 certioraris has expired 
        and no petition has been filed; (B) a timely petition for 
        certioraris was filed and the Supreme Court denied the 
        petition; or (C) a timely petition for certioraris 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 of 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 a 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.

    (a) In General.--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:
``funding for litigation of federal habeas corpus petitions in capital 
                                 cases
    ``Sec. 523. 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.''.
    (b) Clerical Amendment.--The table of contents at the beginning of 
title I of the Omnibus Crime Control and Safe Streets Act of 1968 is 
amended by inserting after the item relating to section 522 the 
following new item:

``Sec. 523. Funding for litigation of Federal habeas corpus petitions 
in capital cases.''.

           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 ``shall consider'' and all that 
follows through the end of such subsection and inserting the following: 
``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.''

                          Purpose and Summary

    H.R. 729, the ``Effective Death Penalty Act of 1995'' is 
virtually identical to Title I of H.R. 3, the ``Taking Back Our 
Streets Act of 1995.'' H.R. 729 would enact provisions to 
strengthen the nation's death penalty laws. The bill is divided 
into two titles. Title I reforms the habeas corpus provisions 
which apply in federal court. Title II modifies the federal 
procedures that determine when juries may recommend the death 
penalty at trial.
    Title I of the bill contains provisions designed to curb 
the abuse of the habeas corpus process, and particularly to 
address the problem of delay and repetitive litigation in 
capital cases. This proposal is the culmination of almost 15 
years of work in Congress to achieve meaningful habeas corpus 
reform.
    Subtitle A of Title I will impose periods of limitation on 
the filing of federal habeas corpus petitions and motions. 
Motions filed with respect to federal court convictions must be 
filed within two years from the time when the conviction 
becomes final. Petitions relating to state court convictions 
must be filed within one year from the conclusion of direct 
review of the case. The subtitle also contains provisions that 
require prisoners to first exhaust any state court remedies 
available to them before they file a habeas corpus petition in 
federal court.
    Subtitle B of Title I enacts a number of the 
recommendations of the Ad Hoc Committee of the Judicial 
Conference on Federal Habeas Corpus in Capital Cases. The 
``Powell Committee'' was formed by the Chief Justice of the 
United States, and chaired by retired Associate Justice Lewis 
Powell, for the purposes of studying and recommending changes 
to the habeas corpus process as it applied to State capital 
cases.
    Subtitle B enacts procedures that states may choose to 
adopt as part of their post-conviction practice. These 
procedures require states to create a mechanism for the 
appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel for indigent prisoners who bring 
post-conviction proceedings relating to a conviction for a 
capital crime. The subtitle also provides for an automatic stay 
of execution when a prisoner files a post-conviction petition 
that conforms with the requirements of the subchapter.
    Subtitle B enacts the core recommendation of the ``Powell 
Committee''--States that appoint competent counsel to represent 
indigent capital defendants in state collateral proceedings 
obtain further safeguards against delay by limiting second and 
successive habeas in capital cases to claims raising doubt 
about prisoner's factual guilt. Under this subtitle, prisoners 
will have six months to file their federal habeas claim once 
their state habeas is completed and their execution is stayed 
automatically upon application to federal court. Additionally, 
federal courts reviewing convictions from states that have 
conformed their laws to this subtitle will be limited to 
considering only those claims raised in the state courts, 
unless the failure to raise the claim was the result of state 
action, the recognition of a new right retroactively applied by 
the U.S. Supreme Court, or based on facts that could not have 
been previously discovered.
    Subtitle B also provides general time limits on federal 
courts for consideration of federal habeas corpus petitions and 
motions. A federal district court will have 60 days from final 
argument to determine a petition; a court of appeals will have 
90 days to determine an appeal; 20 days to decide a petition 
for rehearing en banc.
    Subchapter C requires the federal government to provide 
funds to the states to assist them in defending against post-
conviction petitions filed by prisoners in capital cases. The 
amount of that funding must be equal to the federal funds 
appropriated to capital resource centers each year.
    Title II of H.R. 729 would reform the statute that governs 
the recommendation of a death sentence in federal trials. Title 
II would require juries in capital cases to weigh the 
aggravated and mitigating factors found to exist. If the jury 
finds that the aggravating factors outweigh the mitigating 
factors, or that aggravating factors exist but no mitigating 
factors exist, then the jury is required to recommend the death 
penalty. In all other situations, the jury is prohibited from 
recommending the death penalty.

                Background and Need for the Legislation

    H.R. 729 has been drafted to address a number of problems 
that presently exist in federal court criminal litigation, and 
especially in death penalty litigation. The bill's reforms can 
be grouped into two broad classifications. First, the bill is 
designed to reduce the abuse of habeas corpus that results from 
delayed and repetitive filings. Second, the bill modifies 
existing federal death penalty provisions to reduce 
arbitrariness by federal juries in the imposition of capital 
punishment.
    To help accomplish the first purpose, the bill imposes 
periods of limitation on federal habeas corpus petitions filed 
under 28 U.S.C. section 2254 or motions filed under 28 U.S.C. 
section 2255. The periods differ depending upon whether the 
convicting was obtained in federal or state court. This reform 
will curb the lengthy delays in filing that now often occur in 
federal habeas corpus litigation, while preserving the 
availability of review when a prisoner diligently pursues state 
remedies and applies for federal habeas review in a timely 
manner. It also preserves review when governmental action 
resulted in the prisoner's delay in filing, when the United 
States Supreme Court recognizes a new right that is 
retroactively applicable, or when new facts are asserted that 
could not have been timely discovered through the exercise of 
reasonable diligence.
    The bill will also broaden the range of proceedings in 
which the certificate of probable cause requirement applies. 
Under current law, state prisoners seeking federal habeas 
corpus relief must obtain such a certificate to appeal a 
district court's denial of the writ. The bill creates an 
identical certificate requirement for appeals of denials of 
federal prisoners' collateral motions. Since federal prisoners, 
like state prisoners, generate a high volume of meritless 
applications for collateral relief, it is appropriate to 
require that appeals of habeas corpus petitions meet a 
threshold probable cause standard before such an appeal will be 
heard by an appellate panel.
    The bill also strengthens the certificate of probable cause 
requirement by providing (in proposed 28 U.S.C. 2253(c)) that a 
certificate may issue only on a substantial showing of the 
denial of a federal right. The bill thus enacts the standard of 
Barefoot v. Estelle, 463 U.S. 880 (1983). The bill also 
requires that the certificate indicate which specific issue or 
issues satisfy this standard.
    This bill also provides that an application for a writ of 
habeas corpus may be denied on the merits even if it might 
otherwise be dismissed because the applicant has failed to 
exhaust state remedies. This reform will help avoid the waste 
of state and federal resources that now result when a prisoner 
presenting a hopeless petition to a federal court is sent back 
to the state courts to exhaust state remedies. It will also 
help avoid potentially burdensome and protracted inquiries as 
to whether state remedies have been exhausted, in cases in 
which it is easier and quicker to reach a negative 
determination of the merits of a petition. This amendment does 
not undermine the policy of comity to state courts that 
underlies the exhaustion requirement, since the federal habeas 
court would only be permitted to deny an unexhausted claim.
    The bill further provides that a state shall not be deemed 
to have waived the exhaustion requirement or be estopped from 
reliance on that requirement unless it waives the requirement 
expressly through counsel. This provision accords appropriate 
recognition to the important interests in comity that are 
implicated by the exhaustion requirement in cases in which 
relief maybe granted. This provision is designed to disapprove 
those decisions which have deemed states to have waived the 
exhaustion requirement, or barred them from relying on it, in 
circumstances other than where the state has expressly waived 
the requirement.
    Subtitlte B of Title I of the bill contains a version of 
the recommendations for capital collateral litigation that were 
presented in the Report of the Ad Hoc Committee of the Judicial 
Conference on Federal Habeas Corpus in Capital Cases (the 
``Powell Committee'' proposal). While the need for reform 
extends to all categories of habeas cases, the defects of the 
current system have had the most extreme effect in capital 
cases. In such cases, the continuation of litigation means that 
the sentence cannot be carried out. Hence, capital defendants 
and their counsel have a unique incentive to keep litigation 
going by any possible means. In the later stages of review, the 
most useful means of doing so is repetitive federal habeas 
filing. The result of this system has been the virtual 
nullification of state death penalty laws through a nearly 
endless review process.
    In essence, the Powell Committee proposal addresses this 
problem through quid pro quo arrangement under which states are 
accorded stronger finality rules on federal habeas review in 
return for strengthening the right to counsel for indigent 
capital defendants. The proposal consists of special capital 
litigation procedures that would be set out in a new chapter 
154 of the Judicial Code. The chapter would apply to capital 
cases in states that undertake to appoint counsel to represent 
indigent capital defendants in state collateral proceedings, 
and to set competency standards for such counsel. This would 
fill the gap in representation for indigent capital defendants 
in state proceedings under existing law, since appointment of 
counsel for indigents is constitutionally required for the 
state trial and direct appeal.
    In states that meet this condition, the filing of federal 
habeas petitions in capital cases would be subject to a general 
180 day time limit, and the filing of a second or successive 
federal habeas petition would be limited to situations in which 
cause is shown for failing the raise a claim in earlier 
proceedings and the claim impugns the reliability of the 
petitioner's conviction of the offense of which the capital 
sentence was imposed.
    The Committee notes that the Powell Committee procedures 
preserve ample opportunities of raising claims in capital 
cases. Beyond trial and direct review, the defendant would 
typically be accorded a second run through the state trial 
court and appellate hierarchy in state collateral proceedings--
with the assistance of counsel--followed by review by the 
federal courts at the trial and appellate levels in federal 
habeas corpus proceedings, with a final opportunity to seek 
Supreme Court review at the end of the process. If still more 
review proceedings are to be made available following this 
process, they should be confined, as the Powell Committee 
proposed, to the compelling case of a defendant who raises 
grounds that cast serious doubt on his factual guilt.
    The proposal in subtitle B of Title I of the bill preserves 
the essential features of the original and earlier House-passed 
and Senate-passed versions of the Powell Committee proposal, 
and incorporates some additional features that further 
strengthen finality and reduce the potential for litigation 
abuse and delay.
    Subtitle C in Title I of the bill requires funding for the 
states for capital habeas litigation (from discretionary Byrne 
Grant funds) in an amount equal to any federal appropriations 
for capital resource centers in the same year. The federal 
government provides substantial assistance to defense efforts 
in the this area through the resource centers, but provides no 
support for prosecution efforts in such litigation. In many 
cases, a state attorney general office on a limited budget now 
faces a large law firm operating pro bono and a federally 
funded capital resource center in federal habeas litigation. 
The reform in this title is responsive to the imbalance in 
litigation resources that has resulted from one-sided federal 
support for defendants' efforts to overturn capital sentences 
and convictions.
    Title II of H.R. 729 amends federal death penalty 
procedures to require a jury to recommend a capital sentence if 
the jury finds that the aggravation factors in the case 
outweigh any mitigating factors. This follows the approach 
approved by the Supreme Court in Blystone v. Pennsylvania, 494 
U.S. 299 (1990) and Boyde v. California, 494 U.S. 370 (1990). 
The Blystone-Boyde rule provides the greatest degree of 
assurance that capital sentences will be imposed in cases in 
which they are warranted. It also provides the best assurance 
of consistency and fairness in the imposition of capital 
punishment by avoiding any suggestion of a standardless 
discretion of the jury to refrain from imposing a capital 
sentence, in disregard of the aggravating and mitigating 
factors in the case.
    The amendment in this title further requires the court to 
instruct the jury to avoid any influence of sympathy, 
settlement passion, prejudice, or other arbitrary factors in 
its decision. This type of instruction was upheld by the 
Supreme Court in Saffle v. Parks, 494 U.S. 484 (1990) and 
California v. Brown, 479 U.S. 538 (1987). Finally, the court 
will be required to instruct the jury that its recommendation 
is to be based on the aggravating and mitigating factors in the 
case, but that the final decision concerning the balance of 
aggravating and mitigating factors is a matter for the jury's 
judgment.

                                Hearings

    The Committee's Subcommittee on Crime held two days of 
hearings on H.R. 3, the Taking Back Our Streets Act of 1995, on 
January 19 and 20, 1995. H.R. 729 incorporates virtually all of 
the provisions of Title I of H.R. 3. Testimony was received 
from three witnesses: Gerald H. Goldstein, Esq., President of 
the National Association of Criminal Defense Lawyers; Larry W. 
Yackle, Esq., Professor of Law, Boston University Law School; 
and Susan Bolelyn, Esq., Senior Assistant Attorney General, 
State of Georgia, with no additional material submitted.

                        Committee Consideration

    On February 1, 1995, the Committee met in open session and 
ordered reported the bill H.R. 729 without amendment by a 
recorded vote of 24 to 10, a quorum being present.

                         Vote of the Committee

    The Committee then considered the following amendments with 
recorded votes:
    1. An amendment by Mrs. Schroeder to establish a new rule 
affecting the nature of federal court review of state court 
adjudications. The Schroeder amendment was defeated by a 
rollcall vote of 15-18.
        AYES                          NAYS
Mr. Schiff                          Mr. Hyde
Mr. Conyers                         Mr. Moorhead
Mrs. Schroeder                      Mr. Sensenbrenner
Mr. Frank                           Mr. McCollum
Mr. Schumer                         Mr. Gekas
Mr. Berman                          Mr. Coble
Mr. Boucher                         Mr. Smith (TX)
Mr. Bryant (TX)                     Mr. Gallegly
Mr. Reed                            Mr. Canady
Mr. Nadler                          Mr. Inglis
Mr. Scott                           Mr. Goodlatte
Mr. Watt                            Mr. Buyer
Mr. Serrano                         Mr. Bono
Mr. Lofgren                         Mr. Heineman
Ms. Jackson Lee                     Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

    2. An amendment by Mr. Watt to expand the basis for general 
habeas corpus appeals beyond the denial of a federal right. The 
Watt amendment was defeated by a rollcall vote of 14-19.
        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mrs. Schroeder                      Mr. Moorhead
Mr. Frank                           Mr. Sensenbrenner
Mr. Schumer                         Mr. McCollum
Mr. Berman                          Mr. Gekas
Mr. Boucher                         Mr. Coble
Mr. Bryant (TX)                     Mr. Smith (TX)
Mr. Reed                            Mr. Schiff
Mr. Nadler                          Mr. Gallegly
Mr. Scott                           Mr. Canady
Mr. Watt                            Mr. Inglis
Mr. Serrano                         Mr. Goodlatte
Ms. Lofgren                         Mr. Buyer
Ms. Jackson Lee                     Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

    3. Mr. Schumer offered an amendment that established 
federal standards governing the provision of trial counsel by 
the states in capital cases. The Schumer amendment was defeated 
by a rollcall vote of 14-19.
        AYES                          NAYS
Mr. Conyers                         Mr. Hyde
Mrs. Schroeder                      Mr. Moorhead
Mr. Frank                           Mr. Sensenbrenner
Mr. Schumer                         Mr. McCollum
Mr. Berman                          Mr. Gekas
Mr. Boucher                         Mr. Coble
Mr. Bryant (TX)                     Mr. Smith (TX)
Mr. Reed                            Mr. Schiff
Mr. Nadler                          Mr. Gallegly
Mr. Scott                           Mr. Canady
Mr. Watt                            Mr. Inglis
Mr. Serrano                         Mr. Goodlatte
Ms. Lofgren                         Mr. Buyer
Ms. Jackson Lee                     Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr

    4. Final Passage. Mr. Hyde moved to report H.R. 729 
favorably to the whole House. The resolution was adopted by a 
rollcall vote of 24-10.
        AYES                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Moorhead                        Mrs. Schroeder
Mr. Sensenbrenner                   Mr. Frank
Mr. McCollum                        Mr. Berman
Mr. Gekas                           Mr. Reed
Mr. Coble                           Mr. Nadler
Mr. Smith (TX)                      Mr. Scott
Mr. Schiff                          Mr. Watt
Mr. Gallegly                        Mr. Serrano
Mr. Canady                          Ms. Lofgren
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Schumer
Mr. Boucher
Mr. Bryant
Ms. Jackson-Lee

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 729, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 7, 1995.
Hon. Henry J. Hyde,
Chariman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 729, the Effective 
Death Penalty Act of 1995.
    Enactment of H.R. 729 would not affect direct spending or 
receipts. Therefore, pay-as-you-go procedures would not apply 
to the bill.
    If you wish further details on this estimate, we will be 
pleased to provide them.
            Sincerely,
                                              Robert D. Reischauer.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 729 
will have no significantly inflationary impact on prices and 
costs in the national economy.

                      Section-by-Section Analysis

                     Title I. Habeas Corpus Reform

            Subtitle A. post conviction petitions: general habeas 
                    reform
            Section 101. Period of limitation for filing writ of habeas 
                    corpus following final judgment of a state court
    Section 101 in subtitle A of title I of the bill amends 28 
U.S.C. 2244 to create a one year period of limitation for 
federal habeas petitions relating to state court convictions. 
The limitation period would begin to run upon the later of the 
finality of the judgment (i.e., the conclusion of direct review 
or the expiration of the time for seeking such review), the 
time at which any impediment to the filing created by state 
action was removed, the time at which the Supreme Court 
retroactively recognized a new federal right, or the time at 
which the factual basis for the claim could have been 
discovered. The running of the limitation period would be 
tolled during the pendency of a properly filed application for 
state review with respect to the pertinent judgment or claim.
            Section 102. Authority of appellate judges to issue 
                    certificates of probable cause for appeal in habeas 
                    corpus and federal collateral relief proceedings
            Section 103. Conforming amendment to the rules of appellate 
                    procedure
    These section amend 28 U.S.C. 2253 and make conforming 
changes in Rule 22 of the Federal Rules of Appellate Procedure. 
The amendments in these sections extend and strengthen the 
requirement that a certificate of probable cause be obtained in 
order to appeal a district court's denial of an application for 
federal collateral relief.
            Section 104. Effect of failure to exhaust State remedies.
    This section amends 28 U.S.C. 2254(b) to provide that an 
application for a writ of habeas corpus may be denied on the 
merits despite the applicant's failure to exhaust state 
remedies. The amendment in section 104 further provides that a 
state shall not be deemed to have waived the exhaustion 
requirement or be estopped from reliance on that requirement 
unless it waives the requirement expressly through counsel.
            Section 105. Period of limitation for Federal prisoners 
                    filing for collateral remedy
    Section 105 creates a two-year period of limitation for the 
filing of habeas corpus motions filed by offenders convicted in 
federal court. The limitation period begins to run from later 
of the finality of the judgment (i.e., the conclusion of direct 
review of expiration of the time for seeking direct review), 
the time of which any impediment to the filing created by 
government action was removed, the time at which the Supreme 
Court retroactively recognized a new federal right, or the time 
at which the factual basis for the claim could have been 
discovered.

Subtitle B. Special procedures for collateral proceedings in capital 
        cases

            Section 111. Death penalty litigation procedures
    Subtitle B of title I of the bill incorporates the 
recommendations for State capital collateral litigation that 
were presented in the Report of the Ad Hoc Committee of the 
Judicial Conference on Federal Habeas Corpus in Capital Cases 
(the ``Powell Committee'' proposal).
    Proposed 28 U.S.C. 2256 sets out the basic conditions for 
states to ``opt in'' to the Powell Committee procedures, by 
extending appointment of counsel for indigent capital 
defendants to state collateral proceedings.
    Proposed 28 U.S.C. 2257 generally authorizes a stay of 
execution through the conclusion of the litigation of an 
initial federal habeas petition, and provides (in subsection 
(c)) that no federal court shall thereafter have the authority 
to stay the execution or grant relief unless (1) the basis for 
the stay and request for relief is a claim that has not 
previously been presented in state or federal court, (2) cause 
is shown for failing to raise the claim earlier, and (3) the 
underlying facts of 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.
    Under proposed 28 U.S.C. 2257(c), the notion of cause for 
failing to raise a claim earlier is spelled out in standard 
fashion as connoting state action in violation of federal law 
or the unavailability of the legal or factual basis of the 
claim at the time of earlier proceedings. The restriction of 
the class of claims that may be raised in paragraph (3) of 
subsection (c) is based on the definition of ``actual 
innocence'' suggested by the Supreme Court's decision in Sawyer 
v. Whitley, 112 S. Ct. 2514 (1992). Only claims impugning the 
reliability of the petitioner's conviction for the underlying 
offense under the specified standard could be raised.
    In light of the requirement that a claim must relate to the 
underlying offense for which the capital sentence was imposed, 
proposed 28 U.S.C. 2257(c) bars raising at this stage claims 
that go only to the validity of the capital sentence and claims 
that go only to the petitioner's eligibility for a capital 
sentence. The rationale for this limitation is that there are 
ample opportunities to raise such sentence-related claims at 
earlier stages of state and federal review, and that any value 
in permitting such claims in second or later federal habeas 
petitions is greatly outweighed by the likelihood of routine 
abuse.
    Proposed 28 U.S.C. 2257 also includes (in subsection (d)) a 
new provision that would limit the authority of both the 
district court and court of appeals to grant a stay or other 
relief on a second or later petition to the district judge and 
appellate panel that decided the initial petition (or to the 
judge or panel to which the case is reassigned due to the 
unavailability of the original court or judges), and to the en 
banc court of appeals. This provides an orderly alternative to 
the judge-shopping and frantic last-minute litigation over 
stays that now occur when the execution of a capital sentence 
is imminent.
    Proposed 28 U.S.C. 2257(d) further provides that a stay or 
other relief may not be granted unless the court first 
determines that the petition does not constitute an abuse of 
the writ. The notion of ``abuse of the writ'' in this context 
means a failure to satisfy the standards set forth in proposed 
28 U.S.C. 2257(c). This provision promotes timely filing which 
will allow the courts adequate time to decide whether a second 
or later filing is permitted under the applicable standard, and 
avoids the problem of courts issuing stays and delaying 
executions to determine the threshold issue of ``abuse of the 
writ'' presented by an eleventh-hour filing.
    Proposed 28 U.S.C. 2257(d) states that its restrictions 
apply ``[n]otwithstanding any other provision of law'' to 
emphasize that it overrides other provisions, including local 
rules of court, which have provided inadequate or unsound 
standards governing these issues in the past.
    Proposed 28 U.S.C. 2258 provides a 180 day time limit for 
federal habeas filing, subject to a possible extension of up to 
60 days for good cause. In general, the limitation period would 
begin running with the filing of an order appointing counsel 
for state collateral review, would be tolled during the 
pendency of a petition for certiorari before the Supreme Court 
following state direct review and in the course of state 
collateral review, and would run following the conclusion of 
state collateral review.
    Proposed 28 U.S.C. 2259 provides for review and a ruling by 
the district court on the claims that are properly before it. 
This ensures that a ruling can be obtained on all properly 
presented claims, without the delay entailed by sending 
unexhausted claims back to the state courts. The Powell 
Committee Report, supra , at 22-23, explained: ``Because of the 
existence of state procedural default rules, exhaustion is 
futile in the great majority of cases. It serves the state 
interest of comity in theory, but in practice it results in 
delay and undermines the state interest in the finality of its 
criminal convictions. The Committee believes that the States 
would prefer to see post-conviction litigation go forward in 
capital cases, even if that entails a minor subordination of 
their interest in comity as it is expressed in the exhaustion 
doctrine.''
    As specified in subsection (a) of proposed 28 U.S.C. 2259, 
the claims that are ``properly before'' the district court are 
(1) claims that have been raised and decided on the merits in 
the state courts, and (2) other claims where cause is shown for 
not having raised them properly in state proceedings. The 
district court's review of these claims would be subject to the 
normal limitations on the scope of federal habeas review, 
including the rules regarding deference to state court fact 
finding under 28 U.S.C. 2254(d).
    Proposed 28 U.S.C. 2260 waives the requirement of a 
certificate of probable cause to appeal the denial of an 
initial federal habeas petition by a district court, in capital 
habeas cases subject to the Powell Committee procedures.
    Proposed 28 U.S.C. 2261 contains provisions that make the 
Powell Committee procedures potentially applicable to states, 
such as California, which have adopted unitary review systems 
in capital cases that involve review of collateral claims 
concurrently with direct review of the judgment.
    Proposed 28 U.S.C. 2262 establishes time limitation rules 
for concluding the litigation of capital habeas petitions, and 
for concluding the litigation of section 2255 motions by 
federal prisoners under capital sentences, in the district 
courts and in the courts of appeals. The section generally sets 
60 and 90 day time limits for decisions by these courts 
following final argument or briefing. These time limitation 
rules will be enforceable by mandamus. They do not create any 
expanded right for petitioners or movants to obtain stays of 
execution, and a court's failure to reach a decision in the 
specified time would not be a ground for granting a petitioner 
or movant relief from a judgment or sentence.
    Proposed 28 U.S.C. 2262 further provides that the 
adjudication of any capital habeas petition that is subject to 
the chapter, and of any section 2255 motion by a federal 
prisoner under a capital sentence, shall be given priority by 
the district court and the court of appeals over all noncapital 
matters. Given the fact that the sentence cannot be carried out 
in a capital case while litigation abuse and delay that have 
actually occurred in capital cases, it is appropriate to 
require district and appellate courts to place these cases ``at 
the head of the line,'' and to reach decisions concerning the 
presented matters within the time limits specified in this 
section.

Subtitle C. Funding for litigation of Federal habeas corpus petitions 
        in capital cases

    Subtitle C in Title I of the bill requires funding for the 
states for capital habeas litigation (from discretionary Byrne 
Grant funds) in an amount equal to any federal appropriations 
for capital resource centers in the same year.

           title ii. federal death penalty procedures reform

    Title II of the H.R. 729 (section 201) amends federal death 
penalty procedures to require a jury to recommend a capital 
sentence if the jury finds that the aggravating factors in the 
case outweigh any mitigating factors, or if only aggravating 
factors exist. The bill prohibits any recommendation of the 
death penalty in all other cases. The amendment in this title 
further requires the court to instruct the jury to avoid any 
influence of sympathy, settlement, passion, prejudice, or other 
arbitrary factors in its decision. Finally, the court must 
instruct the jury that its recommendation is to be based on the 
aggravating and mitigating factors in the case, but that the 
final decision concerning the balance of aggravating and 
mitigating factors is a matter for the jury's judgment.

                              Agency Views

    The Committee received a letter from the U.S. Department of 
Justice providing Administration views on H.R. 3, the ``Taking 
Back Our Streets Act of 1995.'' This letter addressed the 
issues presented in H.R. 729 in pertinent as follows:


                            i. death penalty


A. Habeas corpus reform
    Subtitle A of title I contains reforms affecting federal 
habeas corpus review of state criminal judgments and collateral 
review in federal criminal cases.
    Chapter 1 of subtitle A contains general habeas corpus 
reforms that are essentially the same as those passed by the 
Senate in S. 1763 of the 98th Congress and title XI.A of S. 
1241 of the 102d Congress, except that they do not include a 
rule of deference to ``full and fair'' state adjudications. 
Chapter 2 of subtitle A contains a version of the ``Powell 
Committee'' recommendations for capital collateral litigation; 
somewhat different versions of this proposal were previously 
passed by the Senate in title XI.B of S. 1241 of the 102d 
Congress, and by the House of Representatives in H.R. 5269 of 
the 101st Congress. Chapter 3 in subtitle A requires funding 
for the states for capital habeas litigation (from 
discretionary Byrne Grant funds) in an amount equal to federal 
appropriations for capital resource centers. The same provision 
was passed by the Senate in Sec. 4923 of S. 1241, and by the 
House of Representatives in Sec. 1108 of the first version of 
H.R. 3371 and Sec. 208 of the conference committee version of 
H.R. 3371 in the 102d Congress.
    We share the objectives of curbing the abuse of habeas 
corpus and other collateral remedies--including the 
particularly acute problems of delay and prolonged litigation 
in capital cases--and of ensuring adequate representation for 
defendants who face capital sentences. We believe, however, 
that these objectives would be better accomplished through 
enactment of the reforms proposed in title III of S. 1607 of 
the 103d Congress.
    Both the proposal in H.R. 3 and the proposal of S. 1607 
contain provisions designed to reduce delay and redundancy in 
collateral litigation, primarily by imposing time limits for 
federal habeas filing, and by limiting successive habeas 
filings following the federal courts' rejection of an initial 
petition. Both proposals also would correct an imbalance in 
current federal funding by providing that states are to be 
given funding for capital habeas litigation in an amount equal 
to the federal funding of capital resource centers. However, in 
S. 1607, these measures are conjoined with measures that will 
improve this process further, promoting both fairness and 
finality by ensuring competent legal representation for 
defendants.
    For example, under the provisions of S. 1607, the creation 
of a time limitation rule for federal habeas filing in non-
capital cases is contingent on a state's appointment of counsel 
to represent defendants pursuing state collateral remedies. In 
contrast, the proposal of the current bill simply imposes a 
general one-year time limit for federal habeas filing, and does 
not prescribe any correlative obligation on states to go beyond 
current practices in providing representation for defendants.
    Similarly, S. 1607 prescribes necessary minimum counsel 
standards for the representation of capital defendants in state 
proceedings; otherwise, a defendant could be put on trial for 
his life with limited appeal rights and with only an 
inexperienced, recent law school graduate to provide a defense. 
In contrast, H.R. 3 does not prescribe any counsel standards 
for the states in capital cases. H.R. 3 does provide an 
incentive for states to extend appointment of counsel to 
collateral proceedings in capital cases--and to set some type 
of competency standards for such counsel--by affording states 
which do so a stronger rule limiting successive federal habeas 
petitions and time limits for concluding the litigation of 
federal habeas petitions. However, at the end of the day, 
states are free to decide whether they wish to accept this 
``deal'' at all--removing any ``mandate'' from the states.
    Competent representation at trial and on appeal not only 
provides essential safeguards of fairness for defendants, but 
also constitutes a critical element in ensuring the integrity 
and finality of judgments. Effective counsel at the primary 
stages of litigation promotes error-free proceedings, and 
reduces the likelihood that reversible error will be found at 
later stages, potentially after years of protracted litigation. 
Conversely, a failure to provide effective representation for 
the defendant at the initial, critical stages is a false 
economy that complicates and undermines the proceedings, and 
jeopardizes the finality of any resulting judgment on review. 
The proposal of S. 1607 embodies a highly effective approach to 
minimizing the likelihood of error and resulting jeopardy to 
the integrity of judgments through provision of effective 
counsel at trial and on appeal, while the proposal in H.R. 3 
does not move beyond existing law and practice in this area.
    Hence, since we believe that sound reforms should 
effectively further all the important objectives in this area--
increased finality and assurance of fairness to defendants--we 
recommend that the habeas reform provisions of S. 1607 be 
enacted in lieu of those proposed in this bill.
B. Federal death penalty procedures reform
    Subtitle B of Title I amends the death penalty provisions 
enacted by the Violent Crime Control and Law Enforcement Act of 
1994, to direct the jury to impose a capital sentence if it 
finds that the aggravating factors in the case outweigh any 
mitigating factors. As we have previously stated, we support 
this approach as providing ``more effective safeguards against 
inconsistency in capital sentencing by providing better 
guidance for the jury concerning the circumstances in which a 
capital sentence should or should not be imposed.'' Letter of 
Attorney General Janet Reno to Honorable Joseph R. Biden, Jr., 
Detailed Comments at 3 (June 13, 1994).
    However, the amendment in Sec. 111(a) of subtitle B does 
not fully delete inconsistent language in the enacted version 
of 18 U.S.C. 3593(e). A technically correct formulation of this 
amendment would read as follows:

          Subsection (e) of section 3593 of title 18, United 
        States Code, is amended by striking ``shall consider'' 
        and all that follows through the end of the subsection 
        and inserting the following: ``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.''.

    Beyond the amendment in subtitle B of title I of the 
current bill, our communication to the conference committee on 
the 103d Congress crime bills recommended several additional 
amendments which remain relevant to the enacted death penalty 
provisions. Specifically, we continue to recommend that the 
following changes also be made to strengthen and clarify these 
provisions.
    (1) The separate death penalty procedures under 21 U.S.C. 
848 should be repealed, to make it clear that the new 
procedures apply uniformly to all Federal capital offenses. We 
note that the legislation does repeal the other existing set of 
separate death penalty procedures (for fatal aircraft piracy, 
in 49 U.S.C. 1473).
    (2) Proposed 18 U.S.C. 3593 should be amended to require 
the defense to give notice of the mitigating factors it will 
rely on in capital sentencing, just as the Government is now 
required to give notice of aggravating factors. Defense notice 
is important, for example, in relation to mental status 
mitigating factors (such as impaired capacity and mental or 
emotional disturbance), for which the Government will often 
need time to employ its own experts.
    (3) The final sentence of proposed 18 U.S.C. 3595(c)(2) * * 
* should be deleted, since it could be construed as limiting 
findings of harmless error based on non-constitutional 
violations to instances in which the Chapman harmless-beyond-a-
reasonable-doubt standard is satisfied. Under general standards 
of appellate review, the Chapman, standard only applies to 
constitutional error, and claims of non-constitutional error 
are assessed under the Kotteakos harmless error standard.
    (4) The proposed procedures contemplate a return to an 
earlier system in which the Federal Government does not 
directly carry out executions, but makes arrangements with 
states to carry out capital sentences in Federal cases. We 
recommend amendment of the legislation to perpetuate the 
current approach, under which the execution of capital 
sentences in Federal cases is carried out by Federal officials 
pursuant to uniform regulations issued by the Attorney General.
    (5) The use-of-a-firearm aggravating factor in the Senate 
bill (proposed 18 U.S.C. 3592(c)(2)(A)) should be included in 
the final bill.
    (6) [L]anguage in proposed 18 U.S.C. 3593 relating to 
victim impact information has been placed in the wrong 
subsection.
    Letter of Attorney General Janet Reno to Honorable Joseph 
R. Biden, Jr., Detailed Comments at 3-4 (June 13, 1994).
    We would be pleased to work with interested members of 
Congress to develop this more complete set of death penalty 
amendments, as discussed in our letter to the 1994 crime bill 
conference committee.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE

          * * * * * * *

                    PART VI--PARTICULAR PROCEEDINGS

Chap.                                                               Sec.
151.  Declaratory Judgments.......................................  2201
153.  Habeas Corpus...............................................  2241
154.  Special habeas corpus procedures in capital cases...........  2256
     * * * * * * *

                       CHAPTER 153--HABEAS CORPUS

          * * * * * * *

Sec. 2244. Finality of determination

    (a) * * *
          * * * * * * *
    (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. 2253. Appeal

    [In a habeas corpus proceeding before a circuit on 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.
    [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.
    [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, unless the justice or judge who rendered the order or a 
circuit justice or judge issues a certificate of probable 
cause.]

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. 2254. State custody; remedies in Federal courts

    (a) The Supreme Court, a Justice thereof, a circuit judge, 
or a district court shall entertain an application for writ of 
habeas corpus in behalf of a person in custody pursuant to the 
judgment of a State court only on the ground that he is in 
custody in violation of the Constitution or laws or treaties of 
the United States.
    [(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 
prisoner.]
    (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. 2255. Federal custody; remedies on motion attacking sentence

    A prisoner in custody under sentence of a court established 
by Act of Congress claiming the right to be released upon the 
ground that the sentence was imposed in violation of the 
Constitution of laws of the United States, or that the court 
was without jurisdiction to impose such sentence, or that the 
sentence was in excess of the maximum authorized by law, or is 
otherwise subject to collateral attack, may move the court 
which imposed the sentence to vacate, set aside or correct the 
sentence.
    [A motion for such relief may be made at any time.]
    Unless the motion and the files and records of the case 
conclusively show that the prisoner is entitled to no relief, 
the court shall cause notice thereof to be served upon the 
United States attorney, grant a prompt hearing thereon, 
determine the issues and make findings of fact and conclusions 
of law with respect thereto. If the court finds that the 
judgment was rendered without jurisdiction, or that the 
sentence imposed was not authorized by law or otherwise open to 
collateral attack, or that there has been such a denial or 
infringement of the constitutional rights of the prisoner as to 
render the judgment vulnerable to collateral attack, the court 
shall vacate and set the judgment aside and shall discharge the 
prisoner or resentence him or grant a new trial or correct the 
sentence as may appear appropriate.
    A court may entertain and determine such motion without 
requiring the production of the prisoner at the hearing.
    The sentencing court shall not be required to entertain a 
second or successive motion for similar relief on behalf of the 
same prisoner.
    [An appeal may be taken to the court of appeals from the 
order entered on the motion as from a final judgment on 
application for a writ of habeas corpus.]
    An application for a writ of habeas corpus in behalf of a 
prisoner who is authorized to apply for relief by motion 
pursuant to this section, shall not be entertained if it 
appears that the applicant has failed to apply for relief, by 
motion, to the court which sentenced him, or that such court 
has denied him relief, unless it also appears that the remedy 
by motion is inadequate or ineffective to test the legality of 
his detention.
    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.

     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 trail 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 section 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.
          * * * * * * *
                              ----------                              


                 FEDERAL RULE OF APPELLATE PROCEDURE 22

[Rule 22. Habeas Corpus Proceedings

    [(a) Application for the Original Writ. 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, an appeal by 
the applicant for the writ may not proceed unless a district or 
a circuit judge issues a certificate of probable cause. If an 
appeal is taken by the applicant, the district judge who 
rendered the judgment shall either issue a certificate of 
probable cause or state the reasons why such a certificate 
should not issue. The certificate or the statement shall be 
forwarded to the court of appeals with the notice of appeal and 
the file of the proceedings in the district court. If the 
district judge has denied the certificate, the applicant for 
the writ may then request issuance of the certificate by a 
circuit judge. If such a request 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 its representative, a certificate 
of probable cause is not required.]

                                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.
                              ----------                              


           OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968

          * * * * * * *

                  TITLE I--JUSTICE SYSTEM IMPROVEMENT

                            TABLE OF CONTENTS

     * * * * * * *

           Part E--Bureau of Justice Assistance Grant Programs

Sec. 500. Name of programs.

       subpart 1--drug control and system improvement grant program

     * * * * * * *

                   subpart 3--administrative provisions

Sec. 520. Evaluation.
Sec. 521. General provisions.
Sec. 522. Reports.
Sec. 523. Funding for litigation of Federal habeas corpus petitions in 
          capital cases.
     * * * * * * *

          Part E--Bureau of Justice Assistance Grant Programs

          * * * * * * *

                  Subpart 3--Administrative Provisions

          * * * * * * *


 funding for litigation of federal habeas corpus petitions in capital 
                                 cases


    Sec. 523. 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 18, UNITED STATES CODE

          * * * * * * *

                      PART II--CRIMINAL PROCEDURE

          * * * * * * *

                      CHAPTER 228--DEATH SENTENCE

          * * * * * * *

Sec. 3593. Special hearing to determine whether a sentence of death is 
                    justified

    (a) * * *
          * * * * * * *
    (e) Return of a Finding Concerning a Sentence of Death.--
If, in the case of--
          (1) an offense described in section 3591(a)(1), an 
        aggravating factor required to be considered under 
        section 3592(b) is found to exist;
          (2) an offense described in section 3591(a)(2), an 
        aggravating factor required to be considered under 
        section 3592(c) is found to exist; or
          (3) an offense described in section 3591(b), an 
        aggravating factor required to be considered under 
        section 3592(d) is found to exist,
the jury, or if there is no jury, the court [shall consider 
whether all the aggravating factor or factors found to exist 
sufficiently outweigh all the mitigating factor or factors 
found to exist to justify a sentence of death, or, in the 
absence of a mitigating factor, whether the aggravating factor 
or factors alone are sufficient to justify a sentence of death. 
Based upon this consideration, the jury by unanimous vote, or 
if there is no jury, the court, shall recommend whether the 
defendant should be sentenced to death, to life imprisonment 
without possibility of release or some other lesser sentence.] 
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 of 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.
          * * * * * * *

Sec. 3594. Imposition of a sentence of death

    Upon a recommendation under section 3593(e) that the 
defendant should be sentenced to death [or life imprisonment 
without possibility of release], the court shall sentence the 
defendant accordingly. Otherwise, the court shall impose any 
lesser sentence that is authorized by law. Notwithstanding any 
other law, if the maximum term of imprisonment for the offense 
is life imprisonment, the court may impose a sentence of life 
imprisonment without possibility of release.
          * * * * * * *
                            DISSENTING VIEWS

    We strongly oppose this bill.
    It sacrifices the last hope of the falsely accused and the 
wrongly convicted--the Great Writ of Habeas Corpus--to a facile 
expediency driven by misguided passion for ``finality.''
    The enthusiasm for hasty review and swift execution 
embodied in this bill grotesquely diminishes the historic role 
of the federal writ of habeas corpus in ensuring justice.
    Pursuit of habeas corpus relief by the guilty may 
inconvenience judicial administration. It may also irritate a 
society vexed by the persistence of violent crime. But the 
federal writ's enduring value is that over and over again it 
frees the falsely accused from jail, the wrongly convicted from 
prison, and the innocent from horribly mistaken execution.\1\
    \1\ Hearings on Habeas Corpus, Before the Subcommittee on Civil and 
Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 
1st and 2nd Sess. (Statements of The Honorable H. Lee Sarokin, United 
States District Judge for the District of New Jersey, and Rubin 
Carter); see also, H.R. Rpt. No. 103--[Const. subcomm. report on 
mistaken convictions].
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    This federal bulwark against State injustice is priceless. 
Its value cannot be measured in days ``saved'' by rigid 
timetables, nor by the convenience of short cuts to execution.
    The ultimate test of any proposal to reform federal habeas 
corpus proceedings, therefore, is not whether it will make the 
trains of judicial administration run on time. This bill may do 
that.
    The true test is whether the reform advances justice. It is 
whether it protects innocent men and women from being 
imprisoned and killed by a human process that--especially in 
death penalty cases--is too often flawed by emotion, subverted 
by prejudice, and bungled by incompetence:
          I, as a trial lawyer, can tell you that [death 
        penalty cases] are the most heinous kinds of offense, 
        the kind that outrage public indignity. They inflame 
        jurors and they are the kinds of cases where that 
        inflamed public passion is the most likely to permeate 
        the jury box . . . they are the kinds of cases that we 
        are the most likely to make a mistake on.\2\
    \2\ Hearing on H.R. 3, Before the Subcommittee on Crime of the 
House Comm. on the Judiciary, 104th Cong., 1st Sess. (January 19, 1995) 
(Statement of Gerald H. Goldstein, President, National Association of 
Criminal Defense Lawyers). See also, Hearings on Habeas Corpus, Before 
the Subcommittee on Civil and Constitutional Rights of the House Comm. 
on the Judiciary, 103d Cong., 1st and 2nd Sess.; H.R. Rpt. No. 103--
[report on mistaken convictions].
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    This bill does not address this fundamental and pervasive 
problem of criminal justice. It neither advances justice nor 
protects the innocent. It is therefore flawed not only by what 
it does poorly, but by what it does not do at all.
    It is upon this high ground that we stand against this 
bill.

                               background

    Habeas corpus had a long and distinguished history in 
England before it was imported to the American colonies. Both 
the courts at Westminster and Parliament contributed to the 
development of habeas as the Great Writ of Liberty--the means 
by which English courts could enforce the ``law of the land'' 
against governmental power. The American colonists also linked 
habeas corpus with due process of law. Moreover, the 
Constitution in 1787 assumed that habeas corpus would be 
available and thus provided that the privilege of the writ 
could not be ``suspended'' except in ``Cases of Rebellion or 
Invasion.'' U.S. Const., art. I, Sec. 9, cl. 2.
    The Judiciary Act of 1789 initially authorized the federal 
courts to receive petitions from prisoners held in the custody 
of federal officers in violation of federal law, 1 Stat. 81-82, 
and one of the most significant enactments of the 
Reconstruction era, The Habeas Corpus Act of 1867, extended the 
jurisdiction to cases in which petitioners charge they are 
unlawfully detained by state officials. 14 Stat. 385. The 
provisions of the 1789 and 1867 Acts conferring basic, subject 
matter jurisdiction on the federal courts are codified at 28 
U.S.C. Sec. 2241.
    The Great Writ figured early and often in national affairs. 
In the wake of Reconstruction, habeas corpus was turned to the 
task of adjusting the relations between the Federal Government 
and the states. Most importantly, the writ provided the means 
by which the federal courts came to have ultimate authority to 
vindicate federal claims arising in state criminal cases. The 
sweeping text of the 1867 Act invited such an interpretation. 
No one would contend that the Reconstruction Congress 
``intended'' that the federal courts would defer to state 
judgments.
    Sponsors of the 1867 Act declared it would extend to the 
federal courts a jurisdiction in habeas ``coextensive with all 
the powers that can be conferred upon them.'' Cong. Globe, 39th 
Cong., 1st Sess. 4151 (1866) (statement of Rep. Lawrence in the 
House). The Supreme Court was equally expansive. In Ex parte 
McCardle, 73 U.S. (6 Wall.) 318, 326 (1867), the first case to 
arise under the new Act, the court acknowledged that Congress 
had brought within the federal courts' authority ``every 
possible case of privation of liberty contrary to the National 
. . . laws''--a jurisdiction it would be ``impossible to 
widen.'' Again in Ex parte Royall, 117 U.S. 241, 247 (1886), 
the Court read the Act to confer judicial power ``in language 
as broad as could well be employed.''
    In this century, it has long been settled that the federal 
courts' jurisdiction in habeas corpus provides the judicial 
machinery by which fourteenth amendment rights are enforced in 
the federal judicial system. Justice Oliver Wendell Holmes put 
the point squarely in his celebrated opinion for the Court in 
Moore v. Dempsey, 261 U.S. 86, 91 (1923), when he declared that 
even ``perfection in the machinery'' of adjudication in state 
court cannot insulate an unconstitutional conviction from 
reconsideration by the federal courts in the exercise of their 
habeas corpus jurisdiction. The form of state court process is, 
accordingly, insufficient--however full and fair it might have 
been.
    Thirty years later, in Brown v. Allen, 344 U.S. 443 (1953), 
Justice Felix Frankfurter's opinion for the Court's majority 
confirmed that the federal courts have the authority and the 
obligation under the 1867 Act to adjudicate prisoners' federal 
claims de novo. The federal courts may consider previous state 
court judgments on federal issues. But they cannot defer to 
those judgments. It is worth noting that this bill makes no 
attempt to alter the established principle of independent 
federal adjudication in federal habeas corpus; rather, it 
presupposes that the federal courts have, and will continue to 
have, the authority and the duty to exercise independent 
judgment on the merits of constitutional claims, provided such 
claims are presented to them in a timely way and in a proper 
procedural posture.

                           Competent Counsel

    On the face of it, this bill is largely procedural. It (1) 
establishes a general one-year period within which petitioners 
from State court judgments--capital and non-capital alike--must 
file for habeas corpus relief; (2) creates a special 180 day 
limit and accelerated procedure in death penalty cases for 
States that ``opt in'' by choosing to provide post-conviction 
counsel to persons convicted of capital offenses and sentenced 
to death; (3) limits all petitioners to one federal habeas 
corpus review--the so-called ``one bite at the apple''--except 
under the most extraordinary of circumstances; (4) sets rigid 
timetables within which federal courts must act on petitions; 
and (5) requires the federal government to award grants to 
States to help them oppose petitions for federal habeas corpus.
    Each of these provisions shaves, calcifies, and truncates 
existing law so as to tightly limit the ability of non-capital 
prisoners and persons sentenced to death alike to seek federal 
review of Constitutional questions raised by their cases.
    However, in all of its 21 pages, this ``reform'' 
legislation contains not a single sentence directed toward 
reforming the greatest single cause of successful petitions for 
federal writs of habeas corpus--incompetent counsel at 
trial.\3\ Although some States commendably have instituted 
systems to ensure competent counsel in death penalty cases, far 
too many have not.\4\
    \3\ Hearings on Habeas Corpus, Before the Subcommittee on Civil and 
Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 
1st and 2nd Sess. (Statement of The Honorable H. Lee Sarokin, United 
States District Judge for the District of New Jersey).
    \4\ Hearing on H.R. 3, Before the Subcommittee on Crime of the 
House Comm. on the Judiciary, 104th Cong., 1st Sess. (January 19, 1995) 
(Statement of Gerald H. Goldstein, President, National Association of 
Criminal Defense Lawyers). Hearings on Habeas Corpus, Before the 
Subcommittee on Civil and Constitutional Rights of the House Comm. on 
the Judiciary, 103d Cong., 1st and 2nd Sess. (Statement of Seth P. 
Waxman, Esq., partner, Miller, Cassidy, Larroca & Lewin).
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    By stark contrast, bills reported out of this committee in 
past Congresses have taken care to ensure that those who face 
the death penalty will be guaranteed not simply counsel, but 
competent counsel.\5\
    \5\ See, e.g., H.R. Rep. No. 103-470; 103d Cong., 2d Sess. (1994).
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    Proponents of this bill argue that the procedural reforms 
it proposes are necessary to ensure that the trial--as opposed 
to post-conviction appeals and proceedings--is ``the main 
event.'' \6\ Yet this bill ignores the fact that ``main 
events'' flawed by shoddy counsel not only wreak injustice upon 
defendants, but will continue to generate grounds upon which 
review will be sought, judgments set aside, and justice 
delayed.
    \6\ Hearing on H.R. 3, Before the Subcommittee on Crime of the 
House Comm. on the Judiciary, 104th Cong., 1st Sess. (January 19, 1995) 
(Prepared statement of The Honorable Daniel E. Lungren, Attorney 
General, State of California).
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    In fact, the senior assistant attorney general of the State 
of Georgia, called by the proponents of this bill, testified 
that competent counsel at trial actually makes her job easier:
          [T]he better the attorney is in the trial court, the 
        easier that my job is in post-conviction proceedings 
        because everything has either been raised or it has 
        been waived and there is very little left to litigate 
        unless there is some undiscovered misconduct on 
        someone's part that someone later finds. So it makes my 
        job much easier if trial counsel is effective.\7\
    \7\ Hearing on H.R. 3, Before the Subcommittee on Crime of the 
House Comm. on the Judiciary, 104th Cong., 1st Sess. (January 19, 1995) 
(Statement of Susan Bolelyn, Senior Assistant Attorney General, State 
of Georgia).
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    In short, not only does simply fairness require that 
capital defendants be provided good, experienced, aggressive 
defense counsel, smart judicial administration demands it.
    A broad range of ways exist by which to repair this defect 
in this bill. For example, one amendment proposed and defeated 
in committee would have created an ``opt in'' provision for 
States similar to the proposed ``opt in'' provision for post-
conviction counsel. Under the proposed amendment, federal 
habeas petitioners could not reopen questions they should have 
raised in state proceedings if the State has set up a counsel 
authority.
    However, this ``procedural default'' defense would not be 
available to States that refuse to ensure competent counsel in 
death penalty cases. This only makes common sense--incompetent 
counsel are much more likely to make the kind of mistakes that 
are implicated in procedural default situations.
    Under the proposed amendment, the counsel authority could 
be, at the State's option, the highest court of the state, an 
independent agency, or a statewide public defender 
organization. The authority would oversee providing, 
compensating, and evaluating the competence of trial counsel in 
death penalty cases.
    Other ways exist to achieve the same end. Some prefer 
requiring States to set up counsel authorities, mandating in 
more detail the duties of such authorities and setting Federal 
standards of competence.\8\
    \8\ See e.g., Section 308, S. 1607, 103d Cong., 1st Sess. (1993).
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    The point in all of these cases remains the same, however: 
if justice is truly to be served, we must not only execute 
punishment swiftly. We must also ensure that the trial itself 
is fair.

                               innocence

    A fatal flaw in H.R. 729 that goes to the heart of due 
process and fundamental fairness if the failure to ensure that 
an innocent person should never be executed.
    The McCollum bill permits habeas claims only in the 
difficult-to-imagine situation where there is ``clear and 
convincing'' evidence of innocence and ``no reasonable juror'' 
would find the petitioner guilty. A Democratic amendment to 
substitute ``preponderance of the evidence'' instead of the 
more restrictive standard was defeated.
    Claims of ``innocence'' in habeas proceedings are not part 
of a far-fetched scenario that can never happen in this day and 
age. The truth is this is all too common. In fact, the Supreme 
Court decided a case just this January 23, 1995, that shows how 
easily this can occur.
    The facts in Schlup v. Delo are that a prison inmate 
accused of murder argued that a videotape and interviews in the 
possession of prosecutors showed he could not have committed 
the murder but the information was not revealed to him until 
six years after his conviction. The Court ruled that Mr. Schlup 
should be allowed to raise his claims of innocence.
    There is case after shocking case of similar horror 
stories:
          James Dean Walker had served 20 years in prison when 
        one of his co-defendants confessed that he had pulled 
        the trigger that killed a Little Rock police officer. 
        Walker's gun had not been fired but he had been 
        convicted on the testimony of a witness who said she 
        had seen him shoot the officer. The Eighth Circuit, 
        which had denied his first habeas petition 16 years 
        earlier, agreed in 1985 that he should be freed.
          Ruben ``Hurricane'' Carter was convicted of murder in 
        1967 and served in prison for 18 years even though the 
        witnesses whose identification led to his conviction 
        later recanted their identifications. The conviction 
        was reversed after a federal judge ordered prosecutors 
        to turn over evidence, including failed polygraph 
        tests, which showed the witnesses were lying. Carter 
        was set free.
          Robert Henry McDowell was almost executed for a crime 
        that the victim initially told police was committed by 
        a white man. McDowell was black. The North Carolina 
        Supreme Court reversed a trial court order granting him 
        a new trial but the Fourth Circuit ordered him to be 
        released after the police reports were made public.
    False identifications, witnesses recanting, death-bed 
confessions: these are all too familiar to those who defend 
Death Row inmates. Access to federal courts is vital.
    The federal courts should also be available to hear claims 
of innocence when based on newly-discovered evidence. This bill 
is a sly smokescreen to cut off all claims based on innocence.
    The bill may achieve the goal of speedier executions but 
the cause of justice will not be served. It is an admission of 
failure to pursue one without the other.
    For all these reasons, we strongly dissent.
                                   John Conyers.
                                   Patricia Schroeder.
                                   Jose Serrano.
                                   Xavier Becerra.
                                   Melvin L. Watt.
                                   Bobby Scott.