[Federal Register Volume 72, Number 108 (Wednesday, June 6, 2007)]
[Proposed Rules]
[Pages 31217-31220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10892]


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DEPARTMENT OF JUSTICE

28 CFR Part 26

[Docket No. OJP (DOJ)-1464; AG Order No. 2881-2007]
RIN 1121-AA74


Office of the Attorney General; Certification Process for State 
Capital Counsel Systems

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The USA PATRIOT Improvement and Reauthorization Act of 2005 
instructs the Attorney General to promulgate regulations to implement 
certification procedures for States seeking to qualify for the 
expedited Federal habeas corpus review procedures in capital cases 
under chapter 154 of Title 28, United States Code. The procedural 
benefits of chapter 154 are available to States that establish a 
mechanism for providing counsel to indigent capital defendants in State 
postconviction proceedings that satisfies certain statutory 
requirements. This proposed rule would carry out the Act's requirement 
of issuing regulations for the certification procedure.

DATES: Comment date: Comments must be submitted on or before August 6, 
2007.

ADDRESSES: Please address all comments regarding these proposed 
regulations, by U.S. mail, to: Kim Ball Norris, Senior Policy Advisor 
for Adjudication, Bureau of Justice Assistance, Office of Justice 
Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, 
DC 20531; by telefacsimile (fax), to: (202) 307-0036 or by e-mail, to: 
[email protected]. To ensure proper handling, please 
reference OJP Docket No. 1464 on your correspondence. You may view an 
electronic version of this proposed rule at www.regulations.gov, and 
you may also comment by using the www.regulations.gov comment form for 
this regulation. When submitting comments electronically you must 
include OJP Docket No. 1464 in the subject box.

SUPPLEMENTARY INFORMATION: Public Law 109-177, the USA PATRIOT 
Improvement and Reauthorization Act of 2005, (``the Act'') was signed 
into law on March 9, 2006. Section 507 of that Act amends chapter 154 
of Title 28 of the United States Code. Chapter 154 offers procedural 
benefits in Federal habeas corpus review to States that go beyond the 
constitutional requirement of appointing counsel for indigents at trial 
and on appeal by providing counsel also to capital defendants in State 
postconviction proceedings. The chapter 154 procedures include special 
provisions relating to stays of execution (28 U.S.C. 2262), the time 
for filing Federal habeas corpus applications (28 U.S.C. 2263), the 
scope of Federal habeas corpus review (28 U.S.C. 2264), and time limits 
for Federal district courts and courts of appeals to determine habeas 
corpus applications and related appeals (28 U.S.C. 2266). See 152 Cong. 
Rec. S1620, S1624-28 (daily ed., Mar. 2, 2006) (remarks of Sen. Kyl) 
(explanation of procedural benefits to States under chapter 154); 141 
Cong. Rec. S4590, S4590-92 (daily ed., Mar. 24, 1995) (remarks of Sen. 
Specter) (explaining the historical problem of capital habeas delay 
motivating the enactment of habeas reforms).
    Although chapter 154 has been in place since the enactment of the 
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-
132), the determination that a State was eligible for the procedural 
benefits of chapter 154 had been left to the Federal court of appeals 
for the circuit in which the State is located. The Act amended sections 
2261(b) and 2265 of title 28 to assign responsibility for chapter 154 
certification to the Attorney General of the United States, subject to 
review by the Court of Appeals for the District of Columbia Circuit. 
Section 2265(a) as amended makes clear that the only requirements that 
the Attorney General may impose for a State to receive certification 
are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3)

[[Page 31218]]

( ``[t]here are no requirements for certification or for application of 
this chapter other than those expressly stated in this chapter''). It 
also provides that the date on which a State established the mechanism 
that qualifies it for certification is the effective date of the 
certification. See 28 U.S.C. 2265(a)(2).
    In addition to the changes affecting certification, the Act amends 
section 2261(d) to permit the same counsel that has represented a 
prisoner on direct appeal to represent the prisoner in postconviction 
proceedings without limitation, and it amends section 2266(b)(1)(A) to 
extend the time for a district court to rule on a chapter 154 petition 
from 180 days to 450 days.
    Section 2265(b) directs the Attorney General to promulgate 
regulations to implement the certification procedure. The Department 
consulted with a number of groups in developing this proposed rule to 
carry out the statutory directive, including representatives of State 
officials and both prosecution and defense interests concerned with 
capital case litigation. The consultations covered a broad range of 
issues affecting the implementation of the certification procedure, 
including the State officials who should be responsible for requesting 
certification, the requirements for certification, and the procedure 
for requesting certification. The proposed rule would add a new subpart 
entitled ``Certification Process for State Capital Counsel Systems'' to 
28 CFR part 26.

Section by Section Analysis

Section 26.20

    Section 26.20 explains the rule's purpose to implement the 
certification procedure for chapter 154.

Section 26.21

    Section 26.21 provides definitions for certain terms used in 
chapter 154 and the regulations. Under 28 U.S.C. 2265(a), a 
certification request must be made by ``an appropriate State 
official.'' Pursuant to paragraph (a) of this section of the proposed 
rule, in most cases, that official will be the State Attorney General. 
In those few States, however, where the State Attorney General does not 
have responsibilities relating to Federal habeas corpus litigation, the 
Chief Executive of the State will be considered the appropriate State 
official to make a submission on behalf of the State.
    Paragraph (b) defines ``State postconviction proceedings'' as 
referring to State collateral proceedings, which normally occur 
following the completion of direct review. However, in relation to 
States with unitary review systems for capital cases involving 
concurrent direct and collateral review, the term also encompasses the 
collateral review aspect of the unitary review process. Formerly 
separate provisions for the application of chapter 154 in States with 
unitary review systems under the original version of 28 U.S.C. 2265 
were eliminated by the recent amendments in favor of the current 
provisions, which are worded broadly enough to permit chapter 154 
certification both for States with bifurcated direct and collateral 
review systems and for States with unitary review systems. Compare 
current 28 U.S.C. 2261(b) and 2265 with former 28 U.S.C. 2261(b) and 
2265.
    The definition of ``State postconviction proceedings'' in the 
proposed rule reflects the underlying objective of chapter 154 to 
provide expedited Federal habeas corpus review in capital cases arising 
in States that have gone beyond the constitutional requirement of 
appointing counsel for indigents at trial and on appeal by extending 
the appointment of counsel to indigent capital defendants in State 
collateral proceedings. The provisions of chapter 154, as well as the 
relevant legislative history, reflect the understanding of 
``postconviction proceedings'' as not encompassing all proceedings that 
occur after conviction (e.g., sentencing proceedings, direct review), 
but rather as referring to collateral proceedings. See 28 U.S.C. 
2261(e) (stipulating that ineffectiveness or incompetence of counsel 
during postconviction proceedings in a capital case cannot be a ground 
for relief in a Federal habeas corpus proceeding); 28 U.S.C. 2263(a), 
(b)(2) (180-day time limit for Federal habeas filing under chapter 154 
starts to run ``after final State court affirmance of the conviction 
and sentence on direct review or the expiration of the time for seeking 
such review'' subject to tolling ``from the date on which the first 
petition for post-conviction review or other collateral relief is filed 
until the final State court disposition of such petition''); 152 Cong. 
Rec. S1620, S1624-25 (Mar. 2, 2006) (remarks of Sen. Kyl) (explaining 
that chapter 154 provides incentives for States to provide counsel in 
State postconviction proceedings, equated to collateral proceedings); 
151 Cong. Rec. E2639-40 (daily ed., Dec. 14, 2005) (extension of 
remarks of Rep. Flake) (same understanding); see also, e.g., Murray v. 
Giarratano, 492 U.S. 1 (1989) (equating postconviction and collateral 
proceedings).

Section 26.22

    Section 26.22 sets out the requirements for certification that a 
State must meet to qualify for the application of chapter 154. These 
are the requirements expressly set forth in 28 U.S.C. 2261(c)-(d) and 
2265(a)(1). With respect to each of the requirements, examples are 
provided in the text of mechanisms that would be deemed sufficient or, 
in some cases, insufficient to comply with the chapter. The examples 
given of qualifying mechanisms are illustrative and therefore do not 
preclude States with other mechanisms for providing counsel in 
postconviction proceedings from meeting the requirements for 
certification.

Section 26.23

    Section 26.23 sets out the mechanics of the certification process 
for States seeking to opt in to chapter 154.

Regulatory Certifications

Executive Order 12866--Regulatory Planning and Review

    This action has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), Regulatory Planning and Review, and, accordingly, 
this rule has been reviewed by the Office of Management and Budget.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. It provides only a framework for those 
States that wish to qualify for the benefits of the expedited habeas 
procedures of chapter 154 of title 28 of the U.S. Code. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Attorney General in accordance with the Regulatory Flexibility 
Act (5

[[Page 31219]]

U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This rule provides 
only a framework for those States that wish to qualify for the benefits 
of the expedited habeas procedures of chapter 154 of title 28 of the 
United States Code.

Unfunded Mandates Reform Act of 1955

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

List of Subjects in 28 CFR Part 26

    Law enforcement officers, Prisoners.
    Accordingly, for the reasons set forth in the preamble, part 26 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 26--DEATH SENTENCES PROCEDURES

    1. The heading for part 26 is revised as set forth above.
    2. The authority citation for part 26 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509, 
510, 2261, 2265.

    3. Sections 26.1 through 26.5 are designated as Subpart A and a new 
subpart heading is added to read as follows:

Subpart A--Implementation of Death Sentences in Federal Cases

    4. Part 26 is amended by adding at the end thereof the following 
new Subpart B to read as follows:

Subpart B--Certification Process for State Capital Counsel Systems

Sec.
26.20 Purpose.
26.21 Definitions.
26.22 Requirements.
26.23 Certification process


Sec.  26.20  Purpose.

    Sections 2261(b)(1) and 2265(a) of title 28 of the United States 
Code require the Attorney General to certify whether a State has a 
mechanism for providing legal representation to indigent prisoners in 
State postconviction proceedings in capital cases that satisfies the 
requirements of chapter 154 of title 28. If certification is granted, 
sections 2262, 2263, 2264, and 2266 of chapter 154 of the U.S. Code 
apply in relation to Federal habeas corpus review of capital cases from 
the State. Subsection (b) of 28 U.S.C. 2265 directs the Attorney 
General to promulgate regulations to implement the certification 
procedure under subsection (a) of that section.


Sec.  26.21  Definitions.

    For purposes of this part, the term--
    Appropriate State official means the State Attorney General, except 
that, in a State in which the State Attorney General does not have 
responsibility for Federal habeas corpus litigation, it means the Chief 
Executive thereof.
    State postconviction proceedings means collateral proceedings 
following direct State review or expiration of the time for seeking 
direct State review, except that, in a State with a unitary review 
system under which direct review and collateral review take place 
concurrently, the term includes the collateral review aspect of the 
unitary review process.


Sec.  26.22  Requirements.

    A State meets the requirements for certification under 28 U.S.C. 
2261 and 2265 if the Attorney General determines each of the following 
to be satisfied:
    (a) The State has established a mechanism for the appointment of 
counsel for indigent prisoners under sentence of death in State 
postconviction proceedings. As provided in 28 U.S.C. 2261(c) and (d), 
the mechanism must offer to all such prisoners postconviction counsel, 
who may not be counsel who previously represented the prisoner at trial 
unless the prisoner and counsel expressly request continued 
representation, and the mechanism must provide for the entry of an 
order by a court of record--
    (1) Appointing one or more attorneys as 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.
    Example 1. A State provides that attorneys in a public 
defender's office are to be appointed to represent indigent capital 
defendants in State postconviction proceedings in capital cases. The 
counsel appointment mechanism otherwise satisfies the requirements 
of 28 U.S.C. 2261(c) and (d). Such a mechanism would satisfy the 
chapter 154 requirement relating to appointment of counsel.
    Example 2. A State provides that in any capital case in which a 
defendant is found to be indigent, the court shall appoint counsel 
for State postconviction proceedings from a list of attorneys 
available to represent defendants in a manner consistent with 28 
U.S.C. 2261(c) and (d). Such a mechanism would satisfy the chapter 
154 requirement relating to appointment of counsel.
    Example 3. State law provides that local jurisdictions are to 
determine whether counsel is appointed for indigents in State 
postconviction proceedings in capital cases and not all 
jurisdictions provide for the appointment of such counsel. This 
mechanism would not satisfy the chapter 154 requirement relating to 
appointment of counsel.
    (b) The State has established a mechanism for compensation of 
appointed counsel in State postconviction proceedings.
    Example 1. A State sets hourly rates and allowances for 
compensation of capital counsel, with judicial discretion to 
authorize additional compensation if necessary in particular cases. 
For example, State law may provide that capital counsel in State 
postconviction proceedings will be paid an hourly rate not to exceed 
$100 for up to 200 hours of work, and that these caps can be 
judicially waived if compensation would otherwise be unreasonable. 
Such a system would meet this requirement, as the State has 
established a mechanism to compensate counsel in State 
postconviction proceedings.
    Example 2. A State provides that attorneys in a public 
defender's office are to be appointed to serve as counsel for 
indigent defendants in capital postconviction proceedings. The 
attorney's compensation is his or her regular salary provided by the 
public defender's office. Such a system would meet the requirement 
of establishing a mechanism to compensate counsel in State 
postconviction proceedings.
    Example 3. A State appoints attorneys who serve on a volunteer 
basis as counsel for indigent defendants in all capital 
postconviction proceedings. There is no provision for compensation 
of appointed counsel by the State. Such a system would not meet the 
requirement regarding compensation of counsel.
    (c) The State has established a mechanism for the payment of 
reasonable litigation expenses.
    Example 1. A State may simply authorize the court to approve 
payment of reasonable litigation expenses. For example, State law 
may provide that the court shall order reimbursement of counsel for 
expenses if the expenses are reasonably necessary and reasonably 
incurred. Such a system would meet the requirement of establishing a 
mechanism for payment of reasonable litigation expenses.
    Example 2. A State authorizes reimbursement of counsel for 
litigation expenses up to a set cap, but with allowance for judicial 
authorization to reimburse expenses above that level if necessary. 
This

[[Page 31220]]

system would parallel the approach in postconviction proceedings in 
Federal capital cases and in Federal habeas corpus review of State 
capital cases under 18 U.S.C. 3599(a)(2), (f), (g)(2), which sets a 
presumptive cap of $7,500 but provides a procedure for judicial 
authorization of greater amounts. Such a system would meet the 
requirement of establishing a mechanism for payment of reasonable 
litigation expenses as required for certification under chapter 154.
    Example 3. State law authorizes reimbursement of counsel for 
litigation expenses in capital postconviction proceedings up to 
$1000. There is no authorization for payment of litigation expenses 
above that set cap, even if the expenses are determined by the court 
to be reasonably necessary and reasonably incurred. This mechanism 
would not satisfy the chapter 154 requirement regarding payment of 
reasonable litigation expenses.
    (d) The State provides competency standards for the appointment of 
counsel representing indigent prisoners in capital cases in State 
postconviction proceedings.
    Example 1. A State requires that postconviction counsel must 
have been a member of the State bar for at least five years and have 
at least three years of felony litigation experience. This standard 
is similar to that set by Federal law for appointed counsel for 
indigent defendants in postconviction proceedings in Federal capital 
cases, and in Federal habeas corpus review of State capital cases, 
under 18 U.S.C. 3599(a)(2), (c). Because this State has adopted 
standards of competency, it meets this requirement.
    Example 2. A State appoints counsel for indigent capital 
defendants in postconviction proceedings from a public defender's 
office. The appointed defender must be an attorney admitted to 
practice law in the State and must possess demonstrated experience 
in the litigation of capital cases. This State would meet the 
requirement of having established standards of competency for 
postconviction capital counsel.
    Example 3. A State law requires some combination of training and 
litigation experience. For example, State law might provide that in 
order to represent an indigent defendant in State postconviction 
proceedings in a capital case an attorney must--(1) Have attended at 
least twelve hours of training or educational programs on 
postconviction criminal litigation and the defense of capital cases; 
(2) have substantial felony trial experience; and (3) have 
participated as counsel or co-counsel in at least five appeals or 
postconviction review proceedings relating to violent felony 
convictions. This State would meet the requirement of having 
established standards of competency for postconviction capital 
counsel.
    Example 4. State law allows any attorney licensed by the State 
bar to practice law to represent indigent capital defendants in 
postconviction proceedings. No effort is made to set further 
standards or guidelines for such representation. Such a mechanism 
would not meet the requirement of having established standards of 
competency for postconviction capital counsel.


Sec.  26.23  Certification process.

    (a) An appropriate State official may request that the Attorney 
General determine whether the State meets the requirements for 
certification under Sec.  26.22.
    (b) The request shall include:
    (1) An attestation by the submitting State official that he or she 
is the ``appropriate State official'' as defined in Sec.  26.21; and
    (2) An affirmation by the State that it has provided notice of its 
request for certification to the chief justice of the State's highest 
court.
    (c) Upon receipt of a State's request for certification, the 
Attorney General will publish a notice in the Federal Register--
    (1) Indicating that the State has requested certification;
    (2) Listing any statutes, regulations, rules, policies, and other 
authorities identified by the State in support of the request; and
    (3) Soliciting public comment on the request.
    (d) The State's request will be reviewed by the Attorney General, 
who may, at any time, request supplementary information from the State 
or advise the State of any deficiencies that would need to be remedied 
in order to obtain certification. The review will include consideration 
of timely public comments received in response to the Federal Register 
notice under paragraph (c) of this section, and the certification will 
be published in the Federal Register, if certification is granted.
    (e) Upon certification by the Attorney General that a State meets 
the requirements of Sec.  26.22, such certification is final and will 
not be reopened. Subsequent changes in a State's mechanism for 
providing legal representation to indigent prisoners in State 
postconviction proceedings in capital cases do not affect the validity 
of a prior certification or the applicability of chapter 154 in any 
case in which a mechanism certified by the Attorney General existed 
during State postconviction proceedings in the case. If a State with a 
certified mechanism amends governing State law to change its mechanism 
in a manner that may affect satisfaction of the requirements of Sec.  
26.22, the certification of the State's mechanism prior to the change 
does not apply to the changed mechanism, but the State may request a 
new certification by the Attorney General that the changed mechanism 
satisfies the requirements of Sec.  26.22.

    Dated: May 29, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-10892 Filed 6-5-07; 8:45 am]
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