[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Rules and Regulations]
[Pages 75327-75339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29328]



[[Page 75327]]

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DEPARTMENT OF JUSTICE

28 CFR Part 26

[Docket No. OJP (DOJ)-1464; AG Order No. 3024-2008]
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: Final rule.

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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 rule carries out the Act's requirement of issuing 
regulations for the certification procedure.

DATES: Effective Date: This rule is effective January 12, 2009.

FOR FURTHER INFORMATION CONTACT: Scott Hendley, Associate Director for 
Policy, Office of Policy and Legislation, Criminal Division, U.S 
Department of Justice, 950 Pennsylvania Ave., NW., Washington, DC 
20530, Telephone: 202-514-1808.

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, 1624-28 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) 
(explanation of procedural benefits to states under chapter 154); 141 
Cong. Rec. 9303-06 (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 was 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 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) (``There 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 of 
Justice published a proposed rule in the Federal Register on June 6, 
2007, for this purpose, which would add a new subpart entitled 
``Certification Process for State Capital Counsel Systems'' to 28 CFR 
part 26. See 72 FR 31217 (June 6, 2007). The original comment period 
ended on August 6, 2007. The Department published a notice reopening 
the comment period on August 9, 2007, and the reopened comment period 
ended on September 24, 2007. See 72 FR 44816 (Aug. 9, 2007).
    A summary of the comments received on the proposed rule follows, 
including discussion of changes in the final rule based on the comments 
received, after which a section-by-section analysis for the final rule 
is provided.

Summary of Comments

    Comments on the proposed rule were received from members of the 
public, professional groups of lawyers and judges, lawyers representing 
capital defendants, and advocacy groups. More than 32,000 separate 
comments were received, although the vast majority appeared to be a 
form e-mail message. Nevertheless, each comment was individually 
reviewed by the Department to ensure that all public input on the 
proposed rule was considered.
    The Department made the following changes to the proposed rule 
based on the comments: (1) Modifying the definition of ``State 
postconviction proceedings'' in Sec.  26.21 to clarify the range of 
covered proceedings; (2) modifying the initial sentences in Sec.  
26.22(b) and (c) to be more explicit about the scope of the chapter 154 
requirements; (3) modifying Sec.  26.23(b)(2) to reflect that in some 
states the highest court with jurisdiction over criminal matters is not 
the state supreme court; (4) adding an explicit statement in Sec.  
26.23(d) that the Attorney General will determine the date on which a 
qualifying state capital counsel mechanism was established, as required 
by 28 U.S.C. 2265(a)(1)(B); (5) modifying Sec.  26.23(e), relating to 
the effect of changes in a state's capital counsel mechanism; and (6) 
correcting a citation error in the regulatory certification in the rule 
relating to federalism, which referenced Executive Order 12612 instead 
of Executive Order 13132. The details of these changes and the reasons 
they were made are discussed below in connection with the comments that 
suggested them.
    Some of the commenters requested that additional time be provided 
for comment. This was done by publication of the notice reopening the 
comment period, appearing at 72 FR 44816 (Aug. 9, 2007).
    Most of the critical comments received on the proposed rule 
reflected misunderstandings of the nature of the functions that chapter 
154 requires the Attorney General to perform, and particularly, of the 
limited legal discretion that the Attorney General possesses under the 
statutory provisions. Chapter 154 provides expedited federal habeas 
corpus procedures in capital cases for states that establish a 
mechanism for providing counsel to indigent capital defendants in state 
postconviction proceedings that satisfies certain statutory 
requirements. The 2006 amendments to chapter 154 give the Attorney 
General the responsibility to

[[Page 75328]]

determine whether a states satisfies the requirements of chapter 154, 
subject to de novo review by the Court of Appeals for the District of 
Columbia Circuit. See 28 U.S.C. 2261(b), 2265. Section 2265 as amended 
makes clear that the only requirements that may be imposed for a state 
to receive certification are those expressly stated in chapter 154. See 
28 U.S.C. 2265(a)(3) (``There are no requirements for certification or 
for application of this chapter other than those expressly stated in 
this chapter.'').
    Because of this limitation, there is relatively little that the 
Attorney General has had to determine--or is free to determine--in the 
formulation of the rule. Hence, the rule in large measure simply 
recounts and provides illustration relating to the express statutory 
requirements for certification, addresses some limited interpretive 
questions, and outlines a procedure for states' requests for 
certification. The many ideas proposed in the comments for limiting 
chapter 154 certification to states that satisfy capital counsel 
standards that are not expressly stated in chapter 154 cannot be 
incorporated into the rule, because to do so would conflict with the 
statutory provision that there are no certification requirements beyond 
those that chapter 154 expressly states.
    With this background, specific comments are discussed under the 
following headings:

I. Responsibility for Certification
    A. Role of the United States Attorney General
    B. Role of the State Attorneys General
II. Requirements for Certification
    A. In General
    B. Definition of Requirements
    C. Timing of Collateral Review
III. Certification Procedure
    A. Initial Certification
    B. Continuing Oversight and Decertification
    C. Effect of Changes in Capital Counsel Mechanisms
IV. Other Matters
    A. Regulatory Certifications
    B. Additional Comments

I. Responsibility for Certification

A. Role of the United States Attorney General

    Some commenters argued that the Attorney General would have a 
conflict of interest in carrying out the certification function for 
state capital counsel mechanisms required by chapter 154. A comment 
from three U.S. Senators, for example, stated that the proposed rule 
would permit the ``potential structural bias'' of the Attorney General 
in favor of certification to override the requirements of the law.
    In other comments, an argument appeared that the discharge of these 
functions by the Attorney General would contravene Rule 1.7(a)(2) of 
the American Bar Association (ABA) Model Rules of Professional Conduct 
and comparable rules adopted by most state supreme courts. In relevant 
part, the cited rule provides that ``a lawyer shall not represent a 
client if * * * there is a significant risk that the representation of 
one or more clients will be materially limited by the lawyer's 
responsibilities to another client, a former client or a third person 
or by a personal interest of the lawyer.'' (28 U.S.C. 530B provides 
that federal government attorneys are subject to state laws and rules 
and local federal court rules governing attorneys in the states where 
they engage in their duties to the same extent as other attorneys in 
those states.) For the most part, the commenters who made this argument 
seemed to be urging that the Attorney General should not carry out the 
functions required by chapter 154 at all, in order to avoid the alleged 
conflict of interest.
    As to the specific nature of the alleged conflict of interest, the 
commenters' argument proceeded along the following lines: (1) The 
Attorney General may be asked to impose exacting requirements on the 
states--relating to such matters as provision of ``competent'' counsel 
and payment of ``reasonable litigation expenses'' in state 
postconviction proceedings in capital cases--as conditions for chapter 
154 certification; (2) whatever requirements the Attorney General 
adopts under these headings in the context of chapter 154 may be cited 
as analogical or persuasive precedent for the judicial interpretation 
of the concept of constitutionally effective assistance in federal 
criminal proceedings in which there is a constitutional right to 
counsel; (3) hence, if the Attorney General adopts expansive 
requirements relating to state capital counsel under chapter 154, 
courts may interpret more expansively the requirements for 
constitutionally effective assistance of counsel in federal criminal 
proceedings; (4) such expansive interpretations of the requirements for 
constitutionally effective assistance of counsel in federal criminal 
proceedings would work against prosecutorial interests for which the 
Attorney General is responsible, as setting the bar higher for 
constitutionally effective assistance makes it more likely that the 
performance of defense counsel will be found to be constitutionally 
deficient, resulting in the overturning of criminal judgments that 
federal prosecutors have secured; (5) because of this potential 
spillover effect, the Attorney General has a conflict of interest in 
carrying out the chapter 154 functions.
    Addressing these comments requires explanation of the purpose of 
the amendments to chapter 154 that were enacted in 2006. According to 
their legislative history, the 2006 amendments were enacted by Congress 
in order to address a perceived existing conflict of interest. As 
originally enacted in 1996, chapter 154 did not state who would decide 
whether a state had satisfied its requirements. As a practical matter, 
this left the question to the various federal district courts and 
courts of appeals, as the issue arose in the litigation of capital 
cases. None of these courts found that the chapter 154 procedures were 
applicable in any case. Congress believed that a conflict of interest 
contributed to this result, in that the district and appellate courts 
would be subject to uncongenial requirements under chapter 154 if it 
were found to apply, including time limits on their review proceedings. 
See 152 Cong. Rec. S1620,1624-25 (daily ed. Mar. 2, 2006) (remarks of 
Sen. Kyl, sponsor of the 2006 amendments to chapter 154) (``[T]he 1996 
* * * reforms * * * left the decision of whether a State qualified for 
the incentive to the same courts that were impacted by the time limits. 
This has proved to be a mistake. Chapter 154 has received an extremely 
cramped interpretation, denying the benefits of qualification to States 
that do provide qualified counsel and eliminating the incentive for 
other States to provide counsel * * * [T]his bill * * * removes the 
qualification decision to a neutral forum.''); 151 Cong. Rec. E2640 
(daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake) (similar 
explanation by House sponsor).
    The 2006 amendments sought to resolve this problem by assigning the 
decision concerning a state's satisfaction of the chapter 154 
requirements to an official and a court that would have no comparable 
disincentive to certify compliance with the requirements. The Attorney 
General now makes this determination, subject to de novo review by the 
DC Circuit Court of Appeals. 28 U.S.C. 2265. The DC Circuit has no 
review jurisdiction over state capital cases and thus would not be 
affected by the application of the chapter 154 procedures in federal 
habeas corpus review of such cases. See 152 Cong. Rec. S1625 (daily ed. 
Mar. 2, 2006) (remarks of Sen. Kyl) (``Under new section 2265, the 
Attorney General of the United States will decide if a State has 
established a qualifying mechanism, and that decision will be reviewed 
by the DC Circuit, the only

[[Page 75329]]

Federal circuit that does not handle State-prisoner habeas cases and 
therefore is not impacted by the qualification decision.''); 151 Cong. 
Rec. E2640 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. 
Flake) (similar explanation).
    Against this background, the critical comments noted above 
essentially are complaining that, in seeking to correct one conflict of 
interest, Congress has created another. Even if this contention were 
valid, it could not support the suggestion that the Attorney General 
abrogate his certification responsibilities under chapter 154. Chapter 
154 does not merely authorize or invite the Attorney General to carry 
out these functions, as some commenters apparently assumed; it requires 
him to do so. See 28 U.S.C. 2265(a)(1) (``If requested by an 
appropriate State official, the Attorney General of the United States 
shall determine'' whether the state has established a qualifying 
capital counsel mechanism); Id. at 2265(b) (``The Attorney General 
shall promulgate regulations to implement the certification procedure 
under subsection (a).'').
    Alternatively, some commenters suggested that the Attorney General 
avoid the alleged conflict of interest by eschewing personal 
involvement in carrying out the chapter 154 functions and delegating 
them entirely to the Justice Department's Inspector General, who 
supposedly would be free of the alleged conflict. The rule has not been 
changed on this point because the underlying claim of a conflict of 
interest is not well-founded.
    As noted, some commenters claimed that the Attorney General's 
involvement in the chapter 154 certification functions would violate 
ABA Model Rule 1.7 (and comparable state rules) that bar a lawyer from 
representing a client if there is a significant risk that the 
representation will be materially limited by the lawyer's 
responsibilities to another client, a former client, or a third person, 
or by a personal interest of the lawyer. In carrying out the chapter 
154 certification function with which he is charged by the laws of the 
United States, the Attorney General's client is the United States. 
Hence, the question is whether the Attorney General's representation of 
the United States would be materially limited by the competing 
interests identified in the rule--responsibility to another client, a 
former client, or a third person, or a personal interest.
    This question must be answered in the negative. The Attorney 
General has no responsibilities to any other client that would 
materially limit the discharge of the chapter 154 certification 
function. The Attorney General's only relevant current client is the 
United States, which has expressly directed the discharge of that 
function by law. There is also no reason to believe that the Attorney 
General has any responsibility to a ``former client'' or ``third 
person,'' or any ``personal interest,'' that would materially impair 
his representation of the United States in the discharge of that 
function. The Attorney General has a professional obligation to abide 
by the ``client's decisions concerning the objectives of 
representation,'' ABA Model Rule 1.2(a), and it is difficult to 
conceive how the Attorney General could have such a disqualifying 
conflict in representing the United States when it is the United States 
that has mandated through its laws that he carry out the chapter 154 
certification function.
    As noted above, some commenters argued further that there is a 
conflict between the Attorney General's prosecutorial responsibilities 
and his responsibilities under chapter 154, such as determining what 
constitutes ``competent counsel'' for purposes of the chapter. This 
argument misunderstands the nature of the Attorney General's functions 
under chapter 154. Chapter 154 does not involve the Attorney General in 
assessing or setting standards for the performance of defense counsel 
in state postconviction proceedings. Rather, the Attorney General's 
role is limited to determining whether the state has established a 
mechanism for providing representation to indigent capital defendants 
in state postconviction proceedings, and whether that mechanism 
satisfies certain criteria set out in chapter 154. See 28 U.S.C. 
2261(b)(1), 2265. Moreover, the Attorney General has no discretion in 
defining the requirements that states must satisfy to achieve chapter 
154 certification. Chapter 154 specifies those requirements and 
provides that ``[t]here are no requirements for certification or for 
application of this chapter other than those expressly stated in this 
chapter.'' 28 U.S.C. 2265(a)(3).
    The suggestion that the Attorney General delegate his functions 
under chapter 154 to the Department's Inspector General bears further 
discussion. This suggestion is apparently inspired by the assignment of 
certain functions to the Inspector General in a different set of 
capital counsel provisions that Congress enacted in 2004 as part of the 
Innocence Protection Act, Public Law 108-405, tit. IV, 118 Stat. 2278 
(2004). The Innocence Protection Act authorized a grant program, to be 
administered by the Attorney General, to assist states in implementing 
certain federally prescribed capital counsel standards. Id. sections 
421-26, codified at 42 U.S.C. 14163-63e.
    The capital counsel provisions of the Innocence Protection Act 
differ from chapter 154 in that they provide for an ongoing federal 
oversight role with respect to state implementation of the capital 
counsel standards set forth in that Act. In connection with that 
oversight function, the Innocence Protection Act charges the Inspector 
General with evaluating whether the federal standards are being met in 
states that receive funding under the program. 42 U.S.C. 14163d(a). 
However, even in that context, the role contemplated for the Inspector 
General is only advisory. The ultimate determination concerning state 
compliance with the capital counsel standards, and concerning any 
remedial measures needed to achieve such compliance, is reserved to the 
Attorney General. Id. at 14163d(b)(2) (``If the Attorney General, after 
reviewing a[n Inspector General] report * * * determines that a State 
is not in compliance with the terms and conditions of the grant, the 
Attorney General shall consult with the appropriate State authorities 
to enter into a plan for corrective action. If the State does not agree 
to a plan for corrective action that has been approved by the Attorney 
General within 90 days * * * the Attorney General shall * * * issue 
guidance to the State regarding corrective action to bring the State 
into compliance.'')
    Hence, the Innocence Protection Act, like chapter 154, is 
inconsistent with these commenters' theory that the Attorney General 
has an inherent conflict of interest in determining whether state 
capital counsel systems meet federal statutory standards.

B. Role of the State Attorneys General

    Section 2265(a)(1) in chapter 154 requires the Attorney General to 
determine state compliance with the chapter 154 requirements ``[i]f 
requested by an appropriate State official.'' Section 26.21 in the rule 
says that ``[a]ppropriate 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.''
    Some commenters objected that the state attorney general is not an 
appropriate official to request chapter 154 certification, and that 
responsibility for doing so should instead be assigned to some 
``neutral'' official, or

[[Page 75330]]

alternatively that it should be left to ``the state'' to decide what 
official may apply for certification. These commenters argued that the 
state attorney general should be disqualified from seeking chapter 154 
certification because of a conflict of interest. The alleged conflict 
of interest would arise from the potential benefits to the state 
attorney general in capital cases if the chapter 154 procedures for 
federal habeas corpus review are made applicable in such cases.
    The matter needs to be analyzed in terms of the dual objectives of 
chapter 154: improving the representation of capital defendants in 
state postconviction proceedings, and reducing unnecessarily protracted 
proceedings in federal habeas corpus review of state capital cases. 
With respect to the latter objective, the state attorney general's 
responsibility for defending state capital judgments and securing their 
execution without unnecessary delay may well be a positive incentive to 
seek chapter 154 certification. Hence, in relation to this legislative 
objective, the capital litigation responsibilities of state attorneys 
general are not disqualifying biases or conflicts, but rather a 
positive characteristic that makes these officials suitable to seek 
realization of the legislative objective by pursuing chapter 154 
certification for their states. In contrast, reassigning responsibility 
for seeking chapter 154 certification to a ``neutral'' official could 
thwart realization of the legislative objective by giving that 
responsibility to someone who has less motivation or, indeed, no 
motivation, to do so.
    With respect to the other legislative objective--improving capital 
case representation at the postconviction stage--the commenters argue 
that the state attorney general's interests may lead him to make 
unsound judgments whether the state has satisfied the capital counsel 
requirements of chapter 154. However, the state attorney general under 
the statutes and the rule is an applicant for certification, not the 
decisionmaker concerning the state's compliance with the chapter 154 
standards. The U.S. Attorney General will make an independent 
determination of that question after considering the state attorney 
general's submission, as well as any supporting or contrary information 
or views that any interested entity chooses to submit through the 
public comment procedure provided in Sec.  26.23(c)-(d). Hence, the 
objection concerning bias or conflict of interest on this point is 
without force as well.
    Prior to the 2006 amendments, federal courts determined whether a 
state had satisfied the chapter 154 requirements in the course of 
adjudicating habeas corpus petitions brought by capital convicts from 
that state. Hence, in a state in which the state attorney general has 
responsibility for federal habeas corpus litigation in capital cases, 
the state attorney general was able to seek a determination that the 
state had satisfied the chapter 154 requirements as part of his or her 
litigation functions. There is no basis for interpreting the 2006 
amendments as having divested state attorneys general of this 
authority. Doing so would thwart the objectives of the 2006 amendments 
by disabling the officials with the greatest incentive and capacity to 
seek chapter 154 certification in most states.
    A further consideration is that the Attorney General's 
determination whether a state has satisfied the chapter 154 capital 
counsel requirements is not necessarily final. A state could seek de 
novo review of the Attorney General's determination by the DC Circuit 
Court of Appeals. 28 U.S.C. 2265(c). Seeking such review would commonly 
be within the litigation authority of the state attorney general, 
regardless of which official had sought the initial determination from 
the U.S. Attorney General. It would be odd to deem the state attorney 
general an ``[in]appropriate'' official to seek a determination 
concerning satisfaction of the chapter 154 requirements from the 
Attorney General in the first instance, where the statutes interpose no 
obstacle to state attorneys general seeking the same determination from 
the DC Circuit at a later stage.
    Some commenters who sought to disqualify state attorneys general 
from seeking chapter 154 certification urged in the alternative that 
``the state'' should decide which official may seek such certification. 
However, how ``the state'' makes such a decision requires further 
definition or explanation. Of course, many states deal with the Federal 
Government concerning satisfaction of federal law requirements through 
their attorneys general, but these commenters would reject that 
approach in this context. Alternatively, the suggestion may be that a 
state should not be permitted to seek chapter 154 certification unless 
it enacts legislation authorizing a particular official to seek the 
certification. Chapter 154, however, does not state that a legislative 
act by the state is a precondition for seeking chapter 154 
certification. A further concern is that uncertainty whether ``the 
state'' has authorized a particular official to seek chapter 154 
certification could lead to challenges to certification requests by 
such an official, or could deter officials from seeking certification, 
even if there were no question that the state had established a capital 
counsel mechanism satisfying chapter 154. Not specifying which state 
officials may apply for chapter 154 certification would thus create new 
impediments for the states in seeking such certification. For the 
foregoing reasons, the relevant definition in Sec.  26.21 has not been 
changed in the final rule.

II. Requirements for Certification

    Some commenters noted that the first sentence in Sec.  26.22(b) did 
not expressly limit to capital cases the requirement that a state 
establish a mechanism for compensation of appointed counsel in state 
postconviction proceedings. While this limitation is clear from chapter 
154 and from numerous statements in the proposed rule (including the 
examples in Sec.  26.22(b)), these commenters are correct that the 
limitation was not set forth in the first sentence of Sec.  26.22(b). 
The omission has been corrected in the final rule. Similarly, 
commenters noted that the first sentence in Sec.  26.22(c) in the 
proposed rule did not expressly limit to postconviction proceedings in 
capital cases the requirement that the state establish a mechanism for 
the payment of reasonable litigation expenses. That omission has also 
been corrected in the final rule.
    Comments of a more substantive nature on the requirements for 
certification were as follows:

A. In General

    Some commenters urged that the rule be revised to provide further 
specification concerning the ``standards of competency,'' ``competent 
counsel,'' ``compensation'' of appointed counsel, and ``reasonable 
litigation expenses'' that a state's postconviction capital counsel 
system must provide to qualify for chapter 154 certification.
    For example, three U.S. Senators submitted comments stating that 
the proposed rule failed to provide adequate guidance to states about 
meeting the requirements of chapter 154. These Senators argued that the 
proposed rule conflicted with a legislative intent to ensure competent 
counsel for state capital convicts in exchange for expedited federal 
habeas corpus review. They cited in support certain statements by the 
sponsors of the 2006 amendments that they viewed as implying that the 
rule must require states to provide ``adequate'' or ``quality'' counsel 
for such convicts. According to these Senators, the rule should specify 
what would constitute

[[Page 75331]]

adequate counsel and ensure that the states provide such counsel.
    Similarly, the Judicial Conference of the United States in its 
comments urged elaboration or supplementation of the statutory 
requirements, to make clear what states must do for certification and 
to ensure that capital defendants receive adequate representation in 
state postconviction proceedings. The comments pointed in this 
connection to a resolution appearing in the Report of the Proceedings 
of the Judicial Conference of the United States (Mar. 13, 1990, pp. 8-
9). In that resolution, the Judicial Conference endorsed the 
recommendations in the 1989 Report of the Ad Hoc Committee on Federal 
Habeas Corpus in Capital Cases (commonly known as the ``Powell 
Committee'' report, see 135 Cong. Rec. 24694-98 (Oct. 16, 1989)), with 
the modification that ``[s]pecific mandatory standards similar to those 
set forth in the Anti-Drug Abuse Act of 1988 [Pub. L. 100-690, tit. 
VII, subtit. A, 102 Stat. 4181, 4393-94 (Nov. 18, 1988), now codified 
at 18 U.S.C. 3599] should be required with respect to the appointment 
and compensation of counsel for capital defendants at all stages of the 
state and federal capital punishment litigation.'' The capital counsel 
standards set forth in 18 U.S.C. 3599 generally require appointment for 
indigents of capital counsel having five years of bar admission and 
three years of felony litigation experience; compensation of such 
counsel at an hourly rate of not more than $125, but with authority for 
the Judicial Conference to increase the limit to reflect adjustments in 
general federal pay rates; and defrayal of reasonably necessary 
investigative, expert, or other services not exceeding $7,500, but with 
authority for the court to authorize higher amounts for services of an 
unusual character or duration with the approval of the chief judge or 
delegee.
    These recommendations have not been adopted in the final rule 
because they misunderstand the Attorney General's authority under 
chapter 154. The commenters are correct that the text of chapter 154 
needs to be supplemented in defining competency standards for 
postconviction capital counsel, but mistaken as to who must effect that 
supplementation. Responsibility to set competency standards for 
postconviction capital counsel is assigned to the states that seek 
certification. 28 U.S.C. 2265(a)(1)(C) (Attorney General to determine 
``whether the State provides standards of competency for the 
appointment of counsel in proceedings described in subparagraph (A) 
[i.e., capital postconviction proceedings]'').
    There is one other reference to counsel competency in 28 U.S.C. 
2265(a)(1)(A), which says that the Attorney General is to determine 
``whether the State has established a mechanism for the appointment, 
compensation, and payment of reasonable litigation expenses of 
competent counsel in State postconviction proceedings brought by 
indigent prisoners who have been sentenced to death.'' (Emphasis 
added.) In context, the phrase ``competent counsel'' in section 
2265(a)(1)(A) must be understood as a reference to the standards of 
counsel competency that the states are required to adopt by section 
2265(a)(1)(C). Section 2265(a)(1)(A) requires the state to establish a 
mechanism for the appointment of postconviction capital counsel who 
meet the standards of competency provided by the state. If the 
reference to ``competent counsel'' in section 2265(a)(1)(A) were a 
directive to the Attorney General to set independently the counsel 
competency standards that states must meet for chapter 154 
certification, then the section 2265(a)(1)(C) requirement that the 
states provide such standards would be superfluous, and section 2265 
would be internally inconsistent as to the assignment of responsibility 
for setting counsel competency standards.
    As the Judicial Conference noted in its comments, its March 1990 
Report rejected an aspect of the Powell Committee's original proposal 
by urging that states be required to satisfy federally prescribed 
standards of counsel competency. But Congress did not accept the 
Conference's recommendation on this point, instead making the states 
responsible to provide the standards of competency. See 28 U.S.C. 
2265(a)(1)(C). The Attorney General has no authority to overrule 
Congress and prescribe standards that others unsuccessfully urged 
Congress to impose.
    With respect to compensation of counsel, various commenters urged 
that the rule be more prescriptive regarding the amount of required 
compensation, to ensure that state postconviction capital counsel are 
``reasonably'' or ``adequately'' compensated or receive ``fair'' 
compensation. Again, such comments urge the regulatory adoption of 
measures that Congress declined to include in chapter 154. In contrast 
to the immediately succeeding phrase concerning litigation expenses in 
section 2265(a)(1)(A), which requires a mechanism for payment of 
``reasonable'' litigation expenses, the language relating to 
``compensation'' in the same provision comes with no qualifier. The 
statute requires only that the state have a mechanism for the 
``compensation'' of postconviction capital counsel, leaving 
determination of the level of compensation to the states. Again, the 
Attorney General is prohibited from supplanting the states' discretion 
in this area, because ``[t]here are no requirements for certification 
or for application of this chapter other than those expressly stated in 
this chapter.'' 28 U.S.C. 2265(a)(3).
    Finally, with respect to litigation expenses, the statute requires 
only that the state establish a mechanism for payment of reasonable 
litigation expenses. 28 U.S.C. 2265(a)(1)(A). There is no basis for 
prescribing more specific requirements in the rule. For example, if a 
state statute or rule that applies to capital postconviction 
proceedings simply directs courts to reimburse counsel for reasonable 
litigation expenses, it would satisfy the requirement under chapter 
154. See Sec.  26.22(c), Ex. 1. Such a state provision would state the 
requirement in the same terms as chapter 154 itself, and there would be 
no basis for saying that the state had not satisfied the requirements 
``expressly stated'' in the chapter with respect to payment of 
litigation expenses. 28 U.S.C. 2265(a)(1)(A), (3).
    The foregoing should not be understood as disapproving of the more 
specific requirements that Congress has adopted for federal court 
proceedings in 18 U.S.C. 3599. Those requirements represent one 
approach to ensuring that defendants will be adequately represented, 
and states may look to them as a possible model for capital counsel 
standards in their own systems. The rule gives examples of measures 
that would qualify for chapter 154 certification that are similar to 
the standards of 18 U.S.C. 3599. See Sec.  26.22(b), Ex. 1; Sec.  
26.22(c), Ex. 2; Sec.  26.22(d), Ex.1. But these are not the only 
standards consistent with the statutory requirements for certification, 
and chapter 154 does not allow the Attorney General to supplant the 
states' discretion in further specifying such standards.

B. Definition of Requirements

    The comments that urged further specification of the requirements 
for certification in the rule pointed to various possible models. As 
noted above, some cited the capital counsel requirements for federal 
proceedings that appear in 18 U.S.C. 3599. Others recommended 
incorporating specifications governing the design and operation of 
state capital counsel

[[Page 75332]]

systems based on the ABA Guidelines for the Appointment and Performance 
of Defense Counsel in Death Penalty Cases. Where comments of this type 
acknowledged the existence of 28 U.S.C. 2265(a)(3) (``[t]here are no 
requirements for certification or for application of this chapter other 
than those expressly stated in this chapter''), they argued that it did 
not make any difference, on the ground that all of the proposed 
additions to the express statutory requirements can be regarded as mere 
definitions of terms appearing in the statute, such as those relating 
to standards of competency or payment of counsel for services or 
expenses. This theory may be most conveniently discussed in relation to 
particular key terms: ``Competent counsel,'' ``compensation,'' and 
``reasonable litigation expenses.''
``Competent Counsel''
    This term has already been discussed. It is correct that there is a 
need for additional articulation of counsel competency standards, but 
those standards are to be decided by the states. See 28 U.S.C. 
2265(a)(1)(C). It makes no difference for this purpose whether the 
standards in question are characterized as supplementation or as 
definition of the term ``competent counsel.'' Regardless of labeling, 
the responsibility for further articulation of the counsel competency 
standards is assigned to the states, not to the Attorney General.
    Some comments argued specifically that ``competent counsel'' must 
be defined in the rule to include timing requirements for appointment 
of postconviction capital counsel, citing Spears v. Stewart, 283 F.3d 
992, 1019 (9th Cir. 2002). However, the 2006 amendments were enacted to 
overcome decisions like Spears and ensure that there would be no future 
impediments to the implementation of chapter 154 through the creation 
of extra-statutory requirements for certification: ``In Spears v. 
Stewart, 283 F.3d 992 * * * the Ninth Circuit held that even though 
Arizona had established a qualifying system and even though the State 
court had appointed counsel under that system, the Federal Court could 
still deny the State the benefit of qualification because of a delay in 
appointing counsel * * *. [T]his bill abrogates * * * th[is] holding 
and removes the qualification decision to a neutral forum * * *. 
Paragraph (a)(3) of new section 2265 forbids creation of additional 
requirements not expressly stated in the chapter, as was done in the 
Spears case.'' 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) (remarks 
of Senator Kyl); see 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 2005) 
(extension of remarks of Rep. Flake) (critique of Spears).
``Compensation''
    As discussed above, Chapter 154 simply requires that states provide 
``compensation'' for postconviction capital counsel. The term 
``compensation'' is not ambiguous and does not need further definition 
in the rule. Prescribing minimum amounts of compensation to ensure 
``adequate'' or ``reasonable'' compensation, as some commenters have 
proposed, would not define any term in the statutes, but rather would 
add to the statutory requirements for certification, which 28 U.S.C. 
2265(a)(3) does not allow.
``Reasonable Litigation Expenses''
    Likewise, there is no need for further definition in the rule to 
resolve ambiguity in the meaning of ``reasonable litigation expenses,'' 
or in any other term in the statutes that might be seized as a peg on 
which to hang additional federal prescriptions. As discussed above, a 
state could, for example, formulate its capital counsel provisions in 
essentially the same terms as chapter 154 itself. If a state did so, it 
would have provided for all that chapter 154 requires, and there would 
be no basis for denying certification.
    The capital counsel requirements in chapter 154 reflect Congress's 
judgment as to the proper balance in realizing the chapter's 
objectives, neither setting the bar too low to benefit indigent capital 
defendants in state postconviction proceedings, nor so high as to deter 
states from attempting to satisfy these requirements and seek 
certification. Prior to the 2006 amendments, the federal courts upset 
this balance, as Congress perceived the matter, by adding to the 
statutory requirements and refusing to find chapter 154 applicable in 
any case. Congress therefore transferred responsibility for chapter 154 
certification to the Attorney General and the DC Circuit Court of 
Appeals and specified that ``[t]here are no requirements for 
certification or for application of this chapter other than those 
expressly stated in this chapter.'' 28 U.S.C. 2265(a)(3); see 152 Cong. 
Rec. S1620, 1624-25 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl). 
This balance would again be upset if requirements were prescribed for 
chapter 154 certification that do not appear in the statutes, either 
overtly or in the guise of ``defining'' statutory terms.

C. Timing of Collateral Review

    Some comments addressed the eligibility for chapter 154 
certification of states in which collateral review and direct review in 
capital cases take place concurrently. One of these comments noted that 
the definition of ``State postconviction proceedings'' in Sec.  26.21 
in the proposed rule retained some vestiges of a distinction between 
``unitary review'' systems and other state review systems, which has no 
place in chapter 154 following the 2006 amendments. The point is well 
taken and the final rule has been changed to reflect it.
    The original version of chapter 154 had separate provisions for (i) 
states following the common bifurcated approach in which collateral 
proceedings occur subsequent to the completion of direct review, 
governed by former section 2261(b)-(d), and (ii) states with ``unitary 
review'' procedures (defined as procedures authorizing a capital 
defendant ``to raise, in the course of direct review of the judgment, 
such claims as could be raised on collateral attack''), governed by 
former section 2265.
    In Ashmush v. Woodford, 202 F.3d 1160 (9th Cir. 2000), the court 
assessed California's unitary review system for capital cases under 
former section 2265. The court found that the system did not qualify 
the state for the chapter 154 procedures, on the view that California's 
provisions relating to postconviction capital counsel were not a ``rule 
of its court of last resort or * * * statute,'' as former section 2265 
required.
    The 2006 amendments were intended to overturn this decision. See 
152 Cong. Rec. S1624-25 (daily ed. Mar. 2, 2006) (remarks of Senator 
Kyl). They replaced the separate provisions for bifurcated review 
systems and ``unitary review'' systems with uniform standards in the 
current sections 2261(b) and 2265. The amendments eliminated the 
language in former section 2261(b) that confined its application to 
states that conduct postconviction review following direct review, and 
eliminated the language in former section 2265 that confined its 
application to states that conduct unitary review. The result is that 
the current versions of these provisions apply to all state systems. 
See 152 Cong. Rec. S1620 (remarks of Senator Kyl) (2006 amendments 
``simplif[y] * * * the chapter 154 qualification standard, which 
obviates the need for separate standards for those States that make 
direct and collateral review into separate vehicles and those States 
with unitary procedures'').

[[Page 75333]]

    Given this history and the current text of chapter 154, it is clear 
that certification is available to all states that satisfy the 
chapter's now-uniform requirements in relation to collateral 
proceedings in capital cases, without distinction between states in 
which such collateral proceedings occur following direct review and 
states in which such collateral proceedings occur concurrently with 
direct review. It is also clear that the rule need not refer to a 
distinction between states with ``unitary review'' systems and others. 
``State postconviction proceedings'' have accordingly been defined in 
Sec.  26.21 in the final rule as ``collateral proceedings in state 
court, regardless of whether the state conducts such proceedings after 
or concurrently with direct state review.''

III. Certification Procedure

A. Initial Certification

    Some comments noted that the proposed rule did not refer to the 
requirement in 28 U.S.C. 2265(a)(1)(B) that the Attorney General 
determine the date on which a state established its qualifying capital 
counsel mechanism. Since section 2265(a)(2) makes the certification 
effective as of this date, the Attorney General's determination of this 
date affects the applicability of chapter 154 to cases in which state 
postconviction proceedings occurred before the certification but after 
the state established a qualifying capital counsel mechanism. Section 
26.23(d) has accordingly been modified in the final rule to make clear 
that the Attorney General's certification will include a determination 
of the date on which the qualifying capital counsel mechanism was 
established.
    The attorneys general of Texas and Oklahoma requested a change in 
Sec.  26.23(b)(2), which concerns notice to the chief justice of the 
state's highest court that the state has requested chapter 154 
certification. The highest court with jurisdiction over criminal 
matters in their states is not the state supreme court, but a separate 
court of criminal appeals, which would more appropriately receive 
notice concerning the request for chapter 154 certification. Section 
26.23(b)(2) has been modified in the final rule to take account of this 
fact.
    Other comments opined that the procedures in Sec.  26.23 for the 
Attorney General to receive public input and make certification 
decisions are inadequate because they do not meet requirements for 
rulemaking or adjudication under the Administrative Procedure Act 
(``APA'') or the Constitution. Additional requirements suggested in 
these comments included (i) further specification of the information a 
state must submit or the showing a state must make to be eligible for 
certification; (ii) specification of the amount of time that will be 
allowed for public comment or input concerning a proposed 
certification; (iii) personal notice to potentially affected persons 
concerning a proposed certification; (iv) full disclosure of the 
information considered in reaching a certification decision and the 
reasons for the decision; (v) prohibition of ex parte contacts during 
the consideration of a state application; (vi) conduct of a hearing in 
the state for which certification has been requested; and (vii) 
adversarial presentation and testing of evidence or information offered 
in support of a certification decision.
    Commenters making this argument generally assumed that a chapter 
154 certification is a ``rule'' for APA purposes. Even if this 
assumption were correct, it would provide no support for many of the 
procedures proposed by these commenters, because the APA requires 
trial-like proceedings only for rulemaking that is ``required by 
statute to be made on the record after opportunity for an agency 
hearing.'' 5 U.S.C. 553(c), 556-57. Chapter 154 does not require that 
certifications be made on the record or after a hearing.
    A more basic problem with these commenters' argument is that a 
chapter 154 certification is not a rule as defined in the APA. A 
certification is not a ``statement of general or particular 
applicability and future effect designed to implement, interpret, or 
prescribe law or policy.'' 5 U.S.C. 551(4); see Attorney General's 
Manual on the Administrative Procedure Act 13-14 (1947) (Rules ``must 
be of future effect, implementing or prescribing future law * * *. Rule 
making is agency action which regulates the future conduct of either 
groups of persons or a single person; it is essentially legislative in 
nature, not only because it operates in the future but also because it 
is primarily concerned with policy considerations.''). A chapter 154 
certification does not regulate future conduct and it is not based on 
policy considerations; rather, it is a determination that a state has 
satisfied certain existing requirements of federal law. See 28 U.S.C. 
2265(a)(3). Thus, it is comparable to other determinations that are 
characterized as ``orders'' under the APA, such as licensing decisions. 
See 5 U.S.C. 551(6) (defining ``order'' to mean ``the whole or a part 
of a final disposition, whether affirmative, negative, injunctive, or 
declaratory in form, of an agency in a matter other than rule making 
but including licensing''), 551(8) (defining ``license'' to include 
``the whole or a part of an agency permit, certificate, approval, 
registration, charter, membership, statutory exemption or other form of 
permission''). There are other contexts in which the Attorney General 
or other executive officials are called on to make determinations 
whether state laws and policies satisfy federal statutory standards. 
See, e.g., 42 U.S.C. 1973c (Voting Rights Act preclearance by Attorney 
General upon application by chief legal officer or other appropriate 
official of state or subdivision). Determinations of this type are not 
generally deemed to be ``rules'' under the APA.
    Although the rulemaking procedures of 5 U.S.C. 553 are not 
applicable, they can be useful and can be voluntarily adopted. Section 
26.23(c)-(d) in the rule incorporates the principal elements of APA 
rulemaking procedure: Publishing notice of the state's request for 
certification in the Federal Register and receipt of public comment. 
The Federal Register notice will include any statutes, regulations, 
rules, policies, and other authorities identified by the state in 
support of the request. The provision for public notice and comment in 
the rule reflects the view that obtaining such public input may help to 
ensure a fully informed decision by the Attorney General, but it is not 
required by the APA.
    Because a chapter 154 certification is an ``order'' rather than a 
``rule,'' the process for making such a certification is an 
``adjudication.'' 5 U.S.C. 551(7) (defining ``adjudication'' to mean 
``agency process for the formulation of an order''); see also Attorney 
General's Manual on the Administrative Procedure Act, supra, at 14-15 
(``adjudication * * * may involve the determination of a person's right 
to benefits under existing law so that the issues relate to whether he 
is within the established category of persons entitled to such 
benefits''). The APA prescribes procedures for certain types of formal 
administrative adjudications, see 5 U.S.C. 554, which some commenters 
would apply to chapter 154 certification decisions. But these 
provisions apply only to ``adjudication required by statute to be 
determined on the record after opportunity for an agency hearing.'' 5 
U.S.C. 554(a). Because chapter 154 does not require that certifications 
be determined on the record after opportunity for an agency hearing, 
these APA provisions are inapplicable. Also, these APA provisions do 
not apply to decisions subject to de novo review by a court, 5

[[Page 75334]]

U.S.C. 554(a)(1), such as a chapter 154 certification, see 28 U.S.C. 
2265(c)(3).
    Some commenters with capital defense responsibilities suggested 
that their clients would be deprived of life without due process of law 
if they were executed following habeas corpus review under chapter 154. 
This argument is not convincing. Cf. Felker v. Turpin, 518 U.S. 651, 
663-64 (1996) (upholding legislative reform in habeas corpus procedure 
and recognizing that ``judgments about the proper scope of the writ are 
normally for Congress to make'' [citation and internal quotation marks 
omitted]). Some commenters appeared to suggest or assume that capital 
convicts have a constitutionally protected liberty interest in the 
application of the habeas corpus procedures of chapter 153 of title 28 
rather than those of chapter 154, and that the certification procedures 
in Sec.  26.23 are inadequate to protect this interest, even with de 
novo judicial review under 28 U.S.C. 2265(c). Again, the argument is 
not convincing. Chapter 154 certification decisions will not require 
complex and controvertible factual determinations relating to the 
practical operation of state postconviction review. Rather, they will 
be based on examination of state laws and policies to determine whether 
they provide for the measures the chapter describes. See Part II.A 
above and Part III.B below. The rule's procedures are adequate to 
provide the information the Attorney General will need in making 
chapter 154 certification decisions.
    There is also no adequate basis for concluding, as some commenters 
argued, that capital defendants must have the full panoply of rights in 
relation to chapter 154 certifications that parties have in litigation. 
Not all governmental determinations must be made through quasi-
litigative procedures, including determinations whether state laws and 
policies conform to federal statutory requirements. See, e.g., 42 
U.S.C. 16925 (Attorney General to determine whether states and other 
jurisdictions have substantially implemented the national standards for 
sex offender registration and notification); 5 U.S.C. 554 (requiring 
formal administrative adjudication only for matters required by statute 
to be determined on the record after opportunity for an agency hearing, 
and excluding matters subject to de novo judicial determination and 
other specified matters.) Rather, less formal procedures like those 
provided in Sec.  26.23(c)-(d) are often more conducive to prompt and 
accurate decision-making. These procedures may include such measures as 
requesting additional information from the applicant state and advising 
the applicant concerning remedial measures that would facilitate 
compliance. See, e.g., 73 FR 38029, 38047 (July 2, 2008) (procedure for 
determining state compliance in national guidelines for sex offender 
registration and notification); 64 FR 572, 586 (Jan. 5, 1999) (similar 
provisions in guidelines for predecessor sex offender registration and 
notification law). The commenters give no persuasive reason to depart 
from this approach in chapter 154 certification decisions.
    A few procedural suggestions in the comments merit additional 
discussion:
    One is that the rule further specify the showing a state must make 
to be eligible for certification. Comments of this type might be taken 
as proposing that the rule specify in greater detail the type or amount 
of supporting information that states must submit. But such 
specifications do not appear in chapter 154 itself and they are not 
necessary for the Attorney General to carry out his certification 
functions under the chapter. It is preferable to allow states to submit 
whatever information they wish in support of a certification request, 
just as all other persons will be permitted to submit whatever 
information they wish in support of or in opposition to a certification 
request. It is obviously in the interest of all concerned entities to 
submit whatever relevant information they can muster in support of the 
disposition they favor, and allowing them to do so will help to ensure 
that the Attorney General has the basis for a fully informed decision.
    Alternatively, comments of this type may suggest that states should 
be required to establish that they have implemented qualifying capital 
counsel standards in a particular way, such as through statutory 
provisions or through procedural rules adopted by the state supreme 
court. But again, ``[t]here are no requirements for certification or 
for application of this chapter other than those expressly stated in 
this chapter.'' 28 U.S.C. 2265(a)(3). There were originally provisions 
in chapter 154 describing in what form and by what entities qualifying 
capital counsel mechanisms and standards were to be adopted, but the 
2006 amendments to chapter 154 eliminated these provisions. See 28 
U.S.C. 2261, 2265; 152 Cong. Rec. S1624-25 (daily ed. Mar. 2, 2006) 
(remarks of Senator Kyl) (explaining problem under prior statutes 
illustrated by adverse decision concerning California's qualification 
and need for reform to afford states flexibility concerning 
establishment of capital counsel mechanisms). Hence, in making 
certification decisions under chapter 154, the Attorney General is not 
limited to examining particular types of rules or enactments, but 
rather may take into account all articulations of relevant state 
policy, regardless of form.
    Finally, some comments proposed that the rule include a minimum 
period of time, such as at least 90 days, for comment on a requested 
chapter 154 certification. It is unnecessary to include such a 
specification in the rule. Section 26.23(c) provides for notice of a 
requested certification through Federal Register publication, and the 
time period for public comment will be included in such notices in the 
normal manner.

B. Continuing Oversight and Decertification

    Some commenters maintained that the Attorney General must provide 
for ongoing monitoring or oversight of the postconviction capital 
counsel systems of states that have received chapter 154 certification, 
and must decertify states whose performance in this area is found to be 
wanting. Some argued that, in the absence of such oversight, states 
could simply ignore the requirements relating to postconviction capital 
counsel in their own laws and rules. No changes have been made in the 
rule based on these comments because they misunderstand chapter 154 and 
conflate the functions that chapter 154 assigns to the Attorney General 
with those it leaves to the courts.
    Chapter 154 sets two requirements for its applicability. The first 
requirement is that the Attorney General certify that the state has 
established a mechanism for providing counsel in postconviction 
proceedings as provided in section 2265. 28 U.S.C. 2261(b)(1). Section 
2265 provides that the state must have ``established a mechanism for 
the appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel'' for indigents in state capital 
postconviction proceedings, and that the state must ``provide[] 
standards of competency for the appointment of counsel'' in such 
proceedings. A qualifying capital counsel mechanism also must provide 
for judicial orders appointing counsel or declining to do so based on 
waiver or non-indigency (section 2261(c)) and for replacement or 
continuation of counsel at different stages of a capital case in 
conformity with certain requirements (section 2261(d)). These 
provisions do not assign any function to the Attorney General beyond 
examining state laws and policies to determine whether they provide for 
these measures.
    The second requirement for chapter 154's applicability is that 
``counsel was

[[Page 75335]]

appointed pursuant to th[e] mechanism [certified by the Attorney 
General], petitioner validly waived counsel, petitioner retained 
counsel, or petitioner was found not to be indigent.'' 28 U.S.C. 
2261(b)(2). This paragraph differs from section 2261(b)(1) in that it 
does not assign any function to ``the Attorney General of the United 
States.'' Rather, it is addressed to the federal court to which a 
capital convict presents a habeas corpus petition. Hence, even if the 
Attorney General has certified a state, chapter 154 will not apply 
(absent waiver or a finding of non-indigency in the state proceedings) 
if the federal habeas court determines that counsel was not actually 
appointed for the convict pursuant to the certified mechanism.
    Chapter 154 thus provides a tripartite division of responsibility: 
The Attorney General makes the general certification determination 
based on an examination of state laws and policies, but has no 
oversight role with respect to particular cases. Federal habeas courts 
verify that counsel was appointed pursuant to the state postconviction 
capital counsel mechanism in particular cases. Beyond that, 
administration of the state capital counsel system is left to the 
state. The legislative history confirms the division of 
responsibilities set forth in the statutes: ``Under new section 2265, 
the Attorney General of the United States will decide if a State has 
established a qualifying mechanism * * *. Once a State is certified as 
having a qualifying mechanism, chapter 154 applies to all cases in 
which counsel was appointed pursuant to that mechanism, and to cases 
where counsel was not appointed because the defendant waived counsel, 
retained his own, or had the means to retain his own. `Pursuant' is 
intended to mean only that the State's qualifying mechanism was invoked 
to appoint counsel, not to empower the Federal courts to supervise the 
State courts' administration of their own appointment systems. 
Paragraph (a)(3) of new section 2265 forbids creation of additional 
requirements not expressly stated in the chapter * * *.'' 152 Cong. 
Rec. S1625 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl).
    Nothing in chapter 154 supports the view of some commenters that 
the Attorney General must examine the operation of the state capital 
counsel mechanism in particular cases, and there is much to the 
contrary. The statutes require certification by the Attorney General, 
but say nothing about decertification. If some type of continuing 
oversight and potential decertification were contemplated, many 
questions would need to be resolved, including (1) how the Attorney 
General would receive information concerning the ongoing operation of 
the certified state capital counsel mechanism; (2) whether departures 
in particular cases from the prescribed capital counsel mechanism would 
deprive the states of expedited habeas review in those cases only, or 
in all cases; (3) what quantum of violations would be necessary to 
warrant global decertification; (4) whether or how the Attorney General 
would communicate needed remedial measures to the state; and (5) 
whether and how certification could be restored if deficiencies in the 
operation of the capital counsel mechanism were corrected. There is 
nothing about any of these matters in chapter 154.
    The commenters' theory also conflicts with features of chapter 154 
that presuppose a one-time certification. For example, section 
2265(a)(2) states that ``[t]he date the mechanism described in 
paragraph (1)(A) was established shall be the effective date of the 
certification under this subsection.'' If decertification were also 
contemplated, one would expect the provision to say as well when a 
certification terminates. Likewise, section 2265(b) states that ``the 
Attorney General shall promulgate regulations to implement the 
certification procedure under subsection (a).'' Had decertification 
been contemplated, one would also expect the provision to direct the 
Attorney General to implement a decertification procedure.
    In sum, the rule has not been changed to provide for continuing 
oversight of the operation of certified state capital counsel 
mechanisms by the Attorney General, or for potential decertification of 
state counsel mechanisms, because that would be contrary to the 
statutes. The legislative history confirms the obvious import of the 
statutory language on this point: ``When section 507 was being 
finalized, I and others were presented with arguments that some 
mechanism should be created for `decertifying' a State that has opted 
in to chapter 154 but that allegedly has fallen out of compliance with 
its standards. I ultimately concluded that such a mechanism was 
unnecessary, and that it would likely impose substantial litigation 
burdens on the opt-in States that would outweigh any justification for 
the further review * * *. [I]f such a means of post-opt-in review were 
created, it inevitably would be overused and abused * * *. I thought it 
best to create a system of one-time certification, with no avenues to 
challenge or attempt to repeal the State's continuing chapter-154 
eligibility. The consequences of opting in to chapter 154 should not be 
perpetual litigation over the State's continuing eligibility. * * * 
Therefore, under section 507, once a State is certified for chapter 
154, that certification is final. There is no provision for 
`decertification' or `compliance review' after the State has been made 
subject to chapter 154.'' 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) 
(remarks of Senator Kyl).

C. Effect of Changes in Capital Counsel Mechanisms

    Some commenters criticized Sec.  26.23(e) in the proposed rule, 
which provided in part that a certification would no longer apply if a 
state changed its capital counsel mechanism ``in a manner that may 
affect satisfaction of the requirements of Sec.  26.22,'' but that 
``the State may request a new certification by the Attorney General 
that the changed mechanism satisfies the requirements of Sec.  26.22.'' 
Some comments argued that the certification should not cease to apply 
merely because the change might affect satisfaction of the chapter 154 
requirements. Other comments noted potential problems resulting from 
the absence of any specification of who would determine whether a 
change in the capital counsel system might affect satisfaction of the 
requirements of Sec.  26.22.
    In response to these comments, Sec.  26.23(e) has been changed in 
the final rule to delete the statement that certification will not 
apply to a changed capital counsel mechanism. As noted above, chapter 
154 makes no provision for ``decertifying'' a state after it has 
received chapter 154 certification. See 152 Cong. Rec. S1625 (daily ed. 
Mar. 2, 2006) (remarks of Senator Kyl). This might in theory make it 
superfluous to permit the Attorney General to recertify a state after 
it has changed its counsel mechanism, on the ground that the original 
certification remains good no matter what happens subsequently. But 
capital defendants and their counsel may not accept such an 
understanding of chapter 154, and they may argue in litigation that the 
chapter 154 federal habeas corpus review procedures should not be 
deemed applicable in their cases in light of changes or alleged changes 
in a state's certified capital counsel mechanism. If a state had no 
means in such a case to seek re-certification by the Attorney General, 
then the problem that Congress sought to eliminate through the 2006 
amendments could recur--litigation of the adequacy of state capital 
counsel mechanisms in the very federal courts that are affected by the 
applicability of the expedited habeas procedures in

[[Page 75336]]

chapter 154. The final rule, like the proposed rule, accordingly 
provides that the state may seek recertification by the Attorney 
General in such circumstances.

IV. Other Matters

A. Regulatory Certifications

Regulatory Flexibility Act
    Some comments, including some from private lawyers who accept 
appointments to represent capital defendants in federal habeas corpus 
review proceedings, took issue with the Regulatory Flexibility Act 
certification in the proposed rule that the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. 5 U.S.C. 605(b). Their main argument on this point 
was that the applicability of the 180-day time limit for federal habeas 
filing under 28 U.S.C. 2263 in cases subject to chapter 154 would so 
burden them as to drive them out of capital federal habeas corpus work. 
No change has been made with respect to the Regulatory Flexibility Act 
certification in the final rule because the claim of a significant 
economic impact on a substantial number of small entities is 
unconvincing.
    Independent of chapter 154, a convict must file a habeas corpus 
application within a one-year period, normally running from the date 
the judgment becomes final. 28 U.S.C. 2244(d). The basic 180-day 
limitation period under 28 U.S.C. 2263(a) is shorter, but it is 
extendable by 30 days for cause, Id. section 2263(b)(3), and it is 
tolled during the pendency of a petition for certiorari to the Supreme 
Court filed at the conclusion of direct review, Id. section 2263(b)(1). 
So these commenters overstate the practical difference between the 
habeas filing time limit under chapter 154 and the time limit that 
otherwise applies.
    Chapter 154 also includes incentives for states to upgrade the 
representation of capital defendants in state postconviction 
proceedings, which should be of benefit to counsel who subsequently 
represent them in federal habeas corpus proceedings, by promoting the 
adequate development and presentation of claims in the state 
proceedings. In addition, the chapter 154 procedures eliminate a number 
of burdens that defense counsel would otherwise bear. Where chapter 154 
applies, the automatic stay provisions of 28 U.S.C. 2262 are available, 
reducing the need to engage in litigation over stays of execution. 
Moreover, 28 U.S.C. 2264 provides clearer and tighter rules concerning 
the range of cognizable claims in federal habeas corpus review under 
chapter 154, in comparison with the general federal habeas review 
standards. This will relieve federal habeas counsel in chapter 154 
proceedings of the need to develop and present claims that might be 
cognizable under the more porous general habeas rules, but are not 
cognizable under the chapter 154 standards. See 152 Cong. Rec. S1627-28 
(daily ed. Mar. 2, 2006) (remarks of Senator Kyl) (explaining 
differences). Furthermore, under the chapter 154 procedures, federal 
habeas counsel will be relieved of the need to litigate questions 
concerning the exhaustion of state remedies, and of other litigative 
burdens incident to the movement of cases back and forth between the 
state courts and the federal courts that results from the exhaustion 
requirement of 28 U.S.C. 2254(b)-(c). This requirement does not apply 
to review under chapter 154. 28 U.S.C. 2264(b) (``Following review 
subject to subsections (a), (d), and (e) of section 2254, the court 
shall rule on the claims properly before it.''); 152 Cong. Rec. S1626-
27 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl) (so explaining). 
In projecting a significant economic impact resulting from the 
application of certain features of the chapter 154 procedures, these 
commenters do not take account of offsetting reductions in the work 
required to prepare and litigate federal habeas petitions that would 
result from other features of these procedures.
    Finally, the lawyers complaining of an adverse economic impact do 
not claim or show that other litigation or legal work they would engage 
in instead would be less lucrative, even if it were true that the 
implementation of chapter 154 would deter them from accepting capital 
habeas appointments. Considering all of the above, no substantial 
reason has been given for revisiting the Regulatory Flexibility Act 
certification and it is unchanged in the final rule.
Executive Order 13132--Federalism
    Some commenters took issue with the certification in the proposed 
rule that this rule does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment, pursuant to 
Executive Order 13132. (The proposed rule included in this 
certification a mistaken reference to the predecessor Executive Order 
12612, but current Executive Order 13132 was accurately referenced in 
the caption for the certification, and the certification was premised 
on the current version of that order.) The specific claim of these 
commenters is that the proposed rule did not include federalism 
assessment statements sufficient under section 6(b) and (c) of 
Executive Order 13132.
    The requirements of section 6(b) and (c) of the Executive Order are 
limited to rules with ``federalism implications.'' This phrase means 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Exec. 
Order 13132 at Sec.  1(a). But the certification in the proposed rule 
properly stated that the rule does not have such effects, noting that 
the rule only provides a framework for states that wish to qualify for 
the benefits of the expedited habeas corpus procedures of chapter 154.
    Hence, the objection that the proposed rule did not include 
assessments sufficient to comply with section 6(b) and (c) of the 
Executive Order is not well founded. The certification accordingly has 
not been changed in the final rule, except for correcting the mistaken 
citation to Executive Order 12612.
Executive Order 12988--Civil Justice Reform
    Some commenters objected to the certification that the proposed 
regulation met the applicable standards set forth in section 3(a) and 
(b)(2) of Executive Order 12988, including the requirements that 
proposed regulations ``provide a clear legal standard for affected 
conduct rather than a general standard,'' Id. section 3(a)(3), and that 
proposed regulations, as appropriate, ``define[ ] key terms, either 
explicitly or by reference to other regulations or statutes that 
explicitly define those items,'' Id. section 3(b)(2)(F).
    The comments urging specificity in the rule, as directed by 
Executive Order 12988, are at odds with objections by the same 
commenters that the rule should not specify which state officials are 
appropriate state officials for seeking chapter 154 certification, an 
issue discussed in Part I.B of this summary above. In relation to other 
terms and concepts in chapter 154, the objection relating to clear 
legal standards and definitional specificity is merely a variation of 
the claim that the Attorney General should usurp definitional functions 
that chapter 154 reserves to the states (regarding counsel competency 
standards), or should violate the prohibition of 28 U.S.C. 2265(a)(3) 
against adding to the chapter's express requirements for certification 
in the guise of ``definition.'' These matters are fully discussed in 
Part II.A-B of this summary above.

[[Page 75337]]

    Hence, the comments received provided no substantial reason to 
reconsider the certification relating to Executive Order 12988 and this 
certification has not been changed in the final rule.

B. Additional Comments

    Other comments were received on the proposed rule, which variously 
expressed support for the rule and did not propose any changes; stated 
general opposition to the rule or chapter 154; or submitted comments 
proposing changes in the rule that were similar in character or purpose 
to the comments discussed above. No additional changes were made in the 
rule on the basis of these comments because they either proposed no 
changes or provided no persuasive reasons for the changes they 
proposed.

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 the definition of this term in the 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.
    Section 26.21 defines ``State postconviction proceedings'' as 
``collateral proceedings in state court, regardless of whether the 
state conducts such proceedings after or concurrently with direct state 
review.'' Collateral review normally takes place following the 
completion of direct review of the judgment, but some states have 
special procedures for capital cases in which collateral proceedings 
and direct review may take place concurrently. Formerly separate 
provisions for the application of chapter 154 in states with ``unitary 
review'' procedures (involving concurrent collateral and direct review) 
were replaced by the recent amendments with provisions that are worded 
broadly enough to permit chapter 154 certification for all states under 
uniform standards, regardless of their timing of collateral review vis-
a-vis direct review. Compare current 28 U.S.C. 2261(b) and 2265, as 
amended by Public Law 109-177, section 507, 120 Stat. 250-51 (Mar. 9, 
2006), with former 28 U.S.C. 2261(b) and 2265 (2000); see 152 Cong. 
Rec. S1620 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (explaining 
that the current provisions simplify the chapter 154 qualification 
standards, ``which obviates the need for separate standards for those 
States that make direct and collateral review into separate vehicles 
and those States with unitary procedures'').
    The definition of ``State postconviction proceedings'' in the 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) (providing 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, 1624-25 (daily ed. 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 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 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 13132, 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 section 
3(a) and (b)(2) of Executive Order 12988.
Regulatory Flexibility Act
    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 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.

[[Page 75338]]

Unfunded Mandates Reform Act of 1995
    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 section 202 of the Unfunded Mandates Reform Act (2 
U.S.C. 1532).

List of Subjects in 28 CFR Part 26

    Law enforcement officers, Prisoners.

0
Accordingly, for the reasons set forth in the preamble, part 26 of 
chapter I of title 28 of the Code of Federal Regulations is amended as 
follows:

PART 26--DEATH SENTENCES PROCEDURES

0
1. 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.


0
2. The heading for part 26 is revised as set forth above.

0
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

0
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 title 28 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 in 
state court, regardless of whether the state conducts such proceedings 
after or concurrently with direct state review.


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 in capital 
cases.
    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 of appointed counsel in state 
postconviction proceedings in capital cases.
    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 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

[[Page 75339]]

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 or presiding justice or judge of 
the state's highest court with jurisdiction over criminal matters.
    (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. The certification will be 
published in the Federal Register if certification is granted. The 
certification will include a determination of the date the capital 
counsel mechanism qualifying the state for certification was 
established.
    (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. However, a state 
may request a new certification by the Attorney General to resolve 
uncertainties concerning or meet challenges to the applicability of 
chapter 154 in relation to federal habeas corpus review of capital 
cases from the state based on changes or alleged changes in the state's 
capital counsel mechanism.

    Dated: December 5, 2008.
Michael B. Mukasey,
Attorney General.
 [FR Doc. E8-29328 Filed 12-10-08; 8:45 am]
BILLING CODE 4410-18-P