[Federal Register Volume 74, Number 23 (Thursday, February 5, 2009)]
[Proposed Rules]
[Page 6131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2493]


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DEPARTMENT OF JUSTICE

28 CFR Part 26

[Docket No. OJP (DOJ)-1464; AG Order No. 3048-2009]
RIN 1121-AA74


Certification Process for State Capital Counsel Systems

AGENCY: Department of Justice.

ACTION: Notice of request for public comment.

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SUMMARY: Pursuant to the USA PATRIOT Improvement and Reauthorization 
Act of 2005, the Department of Justice promulgated a final rule 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 of the United States Code. Certification 
Process for State Capital Counsel Systems, 73 FR 75327 (Dec. 11, 2008). 
The procedural benefits of chapter 154 are available to states that 
establish mechanisms for providing counsel to indigent capital 
defendants in state postconviction proceedings that satisfy certain 
statutory requirements. The Department hereby requests public comment 
on issues related to the final rule.

DATES: Comments are due April 6, 2009.

ADDRESSES: Please address all comments regarding this notice, by U.S. 
mail, to: Ben Gorban, Bureau of Justice Assistance, Office of Justice 
Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, 
DC 20531. To ensure proper handling, please reference OJP Docket No. 
1464 on your correspondence. You may view an electronic version of this 
notice at http://www.regulations.gov, and you may also comment by using 
the http://www.regulations.gov comment form for this notice. When 
submitting comments electronically you must include OJP Docket No. 1464 
in the subject box.

FOR FURTHER INFORMATION CONTACT: Ben Gorban, Bureau of Justice 
Assistance, Office of Justice Programs at (202) 616-6500 (not a toll-
free number.)

SUPPLEMENTARY INFORMATION: Chapter 154 provides procedural benefits in 
federal habeas corpus review of capital cases 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. Chapter 154 has been in place since 
the enactment of the Antiterrorism and Effective Death Penalty Act of 
1996 (Pub. L. 104-132).
    Section 507 of Public Law 109-177, the USA PATRIOT Improvement and 
Reauthorization Act of 2005 (``the Act''), amended chapter 154 of title 
28 of the United States Code. Prior to the Act, 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 a 
state was located. The Act, inter alia, amended sections 2261(b) and 
2265 of title 28 to assign responsibility for chapter 154 
certifications to the Attorney General of the United States, subject to 
de novo review by the Court of Appeals for the District of Columbia 
Circuit.
    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, to add a new subpart in 28 CFR part 26 entitled 
``Certification Process for State Capital Counsel Systems.'' 
Certification Process for State Capital Counsel Systems, 72 FR 31217 
(June 6, 2007). The comment period ended on August 6, 2007. The 
Department published a notice on August 9, 2007, reopening the comment 
period, and the reopened comment period ended on September 24, 2007. 72 
FR 44816 (Aug. 9, 2007). The Department of Justice published the final 
rule on December 11, 2008, with a scheduled effective date of January 
12, 2009. Certification Process for State Capital Counsel Systems, 73 
FR 75327 (Dec. 11, 2008).
    The final rule is the subject of a preliminary injunction issued by 
a district court in the Northern District of California. See Habeas 
Corpus Res. Ctr. v. U.S. Dep't of Justice, No. C 08-2649 CW (N.D. Cal., 
Jan. 20, 2009). The Department of Justice has decided to solicit 
further comment on all aspects of the final rule for 60 days following 
publication of this notice. The Department will consider comments 
received during this period and publish a summary and response as 
appropriate.

    Dated: February 2, 2009.
Mark Filip,
Acting Attorney General.
[FR Doc. E9-2493 Filed 2-4-09; 8:45 am]
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