Office of the Attorney General; Certification Process for State Capital Counsel Systems, 11705-11713 [2011-4800]
Download as PDF
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules
or secure any swap that is not cleared
through a derivatives clearing
organization.
§ 4.32
[Removed and Reserved]
7. Section 4.32 is removed and
reserved.
8. Section 4.33 is amended by
a. Revising paragraph (a)(6); and
b. Revising paragraph (b)(1), to read as
follows:
§ 4.33
Recordkeeping.
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(a) * * *
(6) Copies of each confirmation or
acknowledgment of a commodity
interest transaction, and each purchase
and sale statement and each monthly
statement received from a futures
commission merchant or a retail foreign
exchange dealer or a swap dealer.
*
*
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(b) * * *
(1) An itemized daily record of each
commodity interest transaction of the
commodity trading advisor, showing the
transaction date, quantity, commodity
interest, and, as applicable, price or
premium, delivery month or expiration
date, whether a put or a call, strike
price, underlying contract for future
delivery or underlying physical, the
futures commission merchant and/or
retail foreign exchange dealer carrying
the account and the introducing broker,
if any, whether the commodity interest
was purchased, sold (including, in the
case of a retail forex transaction, offset),
exercised, expired (including, in the
case of a retail forex transaction,
whether it was rolled forward), and the
gain or loss realized; Provided, however,
that if the trading advisor is a
counterparty to a swap, it must comply
with the swap data recordkeeping and
reporting requirements of part 45 of this
chapter.
*
*
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9. Section 4.34 is amended by
a. Revising paragraph (g);
b. Revising paragraph (i)(2);
c. Revising paragraph (j)(3); and
d. Revising paragraphs (k)(1)(iii),
(k)(2) introductory text and (k)(2)(i), to
read as follows:
§ 4.34
General disclosures required.
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(g) Principal risk factors. A discussion
of the principal risk factors of this
trading program. This discussion must
include, without limitation, risks due to
volatility, leverage, liquidity, and
counterparty creditworthiness, as
applicable to the trading program and
the types of transactions and investment
activity expected to be engaged in
pursuant to such program (including
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retail forex and swap transactions, if
any).
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(i) * * *
(2) Where any fee is determined by
reference to a base amount including,
but not limited to, ‘‘net assets,’’ ‘‘gross
profits,’’ ‘‘net profits,’’ ‘‘net gains,’’ ‘‘pips’’
or ‘‘bid-asked spread,’’ the trading
advisor must explain how such base
amount will be calculated. Where any
fee is based on the difference between
bid and asked prices on retail forex or
swap transactions, the trading advisor
must explain how such fee will be
calculated;
*
*
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(j) * * *
(3) Included in the description of any
such conflict must be any arrangement
whereby the trading advisor or any
principal thereof may benefit, directly
or indirectly, from the maintenance of
the client’s commodity interest account
with a futures commission merchant
and/or retail foreign exchange dealer,
and/or from the maintenance of the
client’s positions with a swap dealer or
from the introduction of such account
through an introducing broker (such as
payment for order flow or soft dollar
arrangements).
(k) * * *
(1) * * *
(iii) Any introducing broker through
which the client will be required to
introduce its account to the futures
commission merchant and/or retail
foreign exchange dealer and/or swap
dealer.
(2) With respect to a futures
commission merchant, retail foreign
exchange dealer, swap dealer or
introducing broker, an action will be
considered material if:
(i) The action would be required to be
disclosed in the notes to the futures
commission merchant’s, retail foreign
exchange dealer’s, swap dealer’s or
introducing broker’s financial
statements prepared pursuant to
generally accepted accounting
principles;
*
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Issued in Washington, DC, on February 24,
2011, by the Commission.
David A. Stawick,
Secretary of the Commission.
Appendices to Amendments to
Commodity Pool Operator and
Commodity Trading Advisor
Regulations Resulting from the DoddFrank Act—Commission Voting
Summary and Statements of
Commissioners
Note: The following appendices will not
appear in the Code of Federal Regulations.
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11705
Appendix 1—Commission Voting
Summary
On this matter, Chairman Gensler and
Commissioners Dunn, Sommers, Chilton and
O’Malia voted in the affirmative; no
Commissioner voted in the negative.
Appendix 2—Statement of Chairman
Gary Gensler
I support the proposed rule that will
amend certain provisions of Part 4 of the
Commission’s regulations regarding the
operations and activities of commodity pool
operators (CPOs) and commodity trading
advisors (CTAs). The proposed amendments
would ensure that CFTC regulations with
regard to CPOs and CTAs reflect changes
made to the Commodity Exchange Act by the
Dodd-Frank Act. Consistent with the DoddFrank Act revisions to the definitions of
CPOs and CTAs to include pools involved in
swaps and advising on swaps, the proposed
amendments will enhance current customer
protections by increasing the transparency of
swap activities by CPOs and CTAs to their
pool participants and clients. The proposed
rule would require that this information be
included in the disclosure, reporting and
recordkeeping scheme that currently exists
for CPOs and CTAs under Part 4.
[FR Doc. 2011–4657 Filed 3–2–11; 8:45 am]
BILLING CODE P
DEPARTMENT OF JUSTICE
28 CFR Part 26
[Docket No. OJP (DOJ) 1540; AG Order No.
3255–2011]
RIN 1121–AA77
Office of the Attorney General;
Certification Process for State Capital
Counsel Systems
Department of Justice.
Proposed rule.
AGENCY:
ACTION:
Section 2265 of title 28,
United States Code, 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. 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. This
proposed rule sets forth the required
regulations for the certification
procedure.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before June 1,
2011. Comments received by mail will
be considered timely if they are
SUMMARY:
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postmarked on or before that date. The
electronic Federal Docket Management
System (FDMS) will accept comments
until Midnight Eastern Time at the end
of that day.
ADDRESSES: Comments may be mailed to
Regulations Docket Clerk, Office of
Legal Policy, Department of Justice, 950
Pennsylvania Avenue, NW., Room 4234,
Washington, DC 20530. To ensure
proper handling, please reference OAG
Docket No. 1540 on your
correspondence. You may submit
comments electronically or view an
electronic version of this proposed rule
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lisa
Ellman, Office of Legal Policy, (202)
514–4601 (not a toll-free number).
SUPPLEMENTARY INFORMATION: Posting of
Public Comments. Please note that all
comments received are considered part
of the public record and made available
for public inspection online at https://
www.regulations.gov. Such information
includes personal identifying
information (such as your name and
address) voluntarily submitted by the
commenter.
You are not required to submit
personal identifying information in
order to comment on this rule.
Nevertheless, if you want to submit
personal identifying information (such
as your name and address) as part of
your comment, but do not want it to be
posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You also must locate
all the personal identifying information
you do not want posted online in the
first paragraph of your comment and
identify what information you want
redacted.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You also must
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted on https://
www.regulations.gov.
Personal identifying information and
confidential business information
identified and located as set forth above
will be placed in the agency’s public
docket file, but not posted online. If you
wish to inspect the agency’s public
docket file in person by appointment,
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please see the paragraph above entitled
FOR FURTHER INFORMATION CONTACT.
Overview
Chapter 154 of title 28, United States
Code, makes special procedures
available to a State respondent in
Federal habeas corpus proceedings
involving review of State capital
judgments, but only if the Attorney
General has certified ‘‘that [the] State
has established a mechanism for
providing counsel in postconviction
proceedings as provided in section
2265,’’ and if ‘‘counsel was appointed
pursuant to that mechanism, petitioner
validly waived counsel, petitioner
retained counsel, or petitioner was
found not to be indigent.’’ 28 U.S.C.
2261(b). Section 2265(a)(1) provides
that, in order for a State to qualify for
the special habeas procedures, the
Attorney General must determine that
‘‘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 [capital] prisoners’’ and that the
State ‘‘provides standards of competency
for the appointment of counsel in [such
proceedings].’’
Chapter 154 has been in place since
the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996
(AEDPA), Public Law 104–132, section
107, 110 Stat. 1214, 1221–26 (1996), but
was amended by the USA PATRIOT
Improvement and Reauthorization Act
of 2005, Public Law 109–177, section
507, 120 Stat. 192, 250–51 (2006). Prior
to the 2006 amendment, the
determination of a State’s eligibility for
the special procedures was left to the
Federal habeas courts. The 2006
amendment assigned 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.
Rulemaking History
Section 2265(b) directs the Attorney
General to promulgate regulations to
implement the certification procedure.
To fulfill this mandate, the Department
of Justice published a proposed rule in
the Federal Register on June 6, 2007,
that proposed adding a new subpart
entitled ‘‘Certification Process for State
Capital Counsel Systems’’ to 28 CFR part
26. 72 FR 31217. The comment period
ended on August 6, 2007. The
Department published a notice on
August 9, 2007, reopening the comment
period, 72 FR 44816, and the reopened
comment period ended on September
24, 2007. The final rule establishing the
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chapter 154 certification procedure was
published on December 11, 2008, 73 FR
75327, with an effective date of January
12, 2009.
In January 2009, the United States
District Court for the Northern District
of California enjoined the Department
‘‘from putting into effect the rule * * *
without first providing an additional
comment period of at least thirty days
and publishing a response to any
comments received during such period.’’
Habeas Corpus Resource Ctr. v. U.S.
Dep’t of Justice, No. 08–2649, 2009 WL
185423, at *10 (Jan. 20, 2009)
(preliminary injunction); Habeas Corpus
Resource Ctr. v. U.S. Dep’t of Justice,
No. 08–2649, slip op. at 1 (Jan. 8, 2009)
(temporary restraining order). On
February 6, 2009, the Department
solicited further public comment, with
the comment period closing on April 6,
2009. 74 FR 6131.
As the Department reviewed the
submitted comments, it considered
further the statutory requirements
governing the regulatory
implementation of the chapter 154
certification procedures. The Attorney
General determined that chapter 154
gave him greater discretion in making
certification determinations than the
December 11, 2008 regulations would
have allowed. Therefore, the
Department published a notice in the
Federal Register on May 25, 2010,
proposing to revoke the December 11,
2008 regulations by removing them from
the Code of Federal Regulations pending
the completion of a new rulemaking
process, during which the Department
would further consider what standards
and procedures were appropriate. 75 FR
29217. The comment period closed on
June 24, 2010. On November 23, 2010,
the Department published a final rule
removing the December 11, 2008
regulations. 75 FR 71353.
The rule proposed today is the result
of the Attorney General’s
reconsideration of the appropriate
standards and procedures for chapter
154 certification. Sections 26.20 and
26.21 of the proposed rule are,
respectively, a general statement of
purpose and a section defining certain
terms appearing in chapter 154. These
sections are unchanged from the
December 11, 2008 final rule. Section
26.22 explains the requirements for
certification under chapter 154, relating
to appointment, compensation, and
payment of reasonable litigation
expenses of competent counsel in State
postconviction proceedings in capital
cases. It is significantly different from
the corresponding section in the
December 11, 2008 regulations,
particularly with respect to counsel
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competency and compensation
standards. Section 26.23 sets out the
procedures for accepting, obtaining
public comment on, and deciding State
requests for chapter 154 certification. It
is similar in substance to the
corresponding section of the December
11, 2008 regulations, but in some
respects simplified and updated. A
section-by-section analysis of the new
proposed rule follows.
Section-by-Section Analysis
Section 26.20
Section 26.20, which is unchanged
from the December 11, 2008 regulations,
explains the rule’s purpose to
implement the certification procedure
for chapter 154.
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Section 26.21
Section 26.21, which is also
unchanged from the December 11, 2008
regulations, defines 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.’’ Prior to
the 2006 amendments to chapter 154,
Federal courts entertaining habeas
corpus applications by State prisoners
under sentence of death would decide
which set of habeas corpus procedures
applied—chapter 153 or chapter 154 of
title 28—and State attorneys general
responsible for such litigation could
request determinations that their States
had satisfied the requirements for the
applicability of chapter 154. The 2006
amendments to chapter 154 were not
intended to disable the State attorneys
general from their pre-existing role in
this area and State attorneys general
continue in most instances to be the
officials with the capacity and
motivation to seek chapter 154
certification for their States. See 73 FR
at 75329–30. Section 26.21 of the rule
accordingly provides that the
appropriate official to seek chapter 154
certification is normally 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
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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 (concurrent
collateral and direct review) were
replaced by the 2006 amendments with
provisions that permit chapter 154
certification for all States under uniform
standards, regardless of their timing of
collateral review vis-a-vis direct review.
Compare 28 U.S.C. 2261(b), 2265 (2006)
(as amended by the USA PATRIOT
Improvement and Reauthorization Act
of 2005), with 28 U.S.C. 2261(b), 2265
(2000) (as enacted by AEDPA); 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. See 73 FR at 75332–33,
75337 (reviewing relevant legislative
and regulatory history). The provisions
of chapter 154, as well as its 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
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11707
proceedings, equated to collateral
proceedings); 151 Cong. Rec. E2639–40
(daily ed. Dec. 22, 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).
Paragraph (a) of § 26.22—Appointment
of Counsel
Paragraph (a) of § 26.22 sets out the
requirements of chapter 154 concerning
appointment of counsel that appear in
28 U.S.C. 2261(c)–(d).
Paragraph (b) of § 26.22—Competent
Counsel
Paragraph (b) of § 26.22 explains how
States may satisfy the requirement to
provide for appointment of ‘‘competent
counsel’’ and to provide ‘‘standards of
competency’’ for such appointments. 28
U.S.C. 2265(a)(1)(A), (C).
The corresponding portion of the
December 11, 2008 regulations
construed the reference to appointment
of ‘‘competent counsel’’ in section
2265(a)(1)(A) as a cross-reference to
counsel meeting the competency
standards provided by the State
pursuant to section 2265(a)(1)(C). It
accordingly treated the definition of
such standards as a matter of State
discretion, not subject to further review
by the Attorney General. See 73 FR at
75331. However, these provisions may
also reasonably be construed as
permitting the Attorney General to
require a threshold of minimum counsel
competency, while recognizing
substantial State discretion in setting
counsel competency standards. See
generally Memorandum for the Attorney
General from David J. Barron, Acting
Assistant Attorney General, Office of
Legal Counsel, Re: The Scope of the
Attorney General’s Authority in
Certifying Whether a State Has Satisfied
the Requirements for Appointment of
Competent Post-Conviction Counsel in
Chapter 154 of Title 28, United States
Code (Dec. 16, 2009), available at
https://www.justice.gov/olc/. The latter
understanding is supported by cases
interpreting chapter 154, see, e.g.,
Spears v. Stewart, 283 F.3d 992, 1013
(9th Cir. 2002) (recognizing that
‘‘Congress * * * intended the states to
have substantial discretion to determine
the substance of the competency
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standards’’ under chapter 154 while still
reviewing the adequacy of such
standards), and by the original Powell
Committee proposal from which many
features of chapter 154 ultimately
derive, see 135 Cong. Rec. 24692, 24696
(Oct. 16, 1989). This understanding is
adopted in § 26.22(b) of the proposed
rule.
The specific minimum standards set
forth in paragraph (b) are based on
judgments by Congress in federal laws
concerning adequate capital counsel
competency standards and on judicial
interpretation of the counsel
competency requirements of chapter
154. Three broad options are provided
for States to satisfy this requirement—an
option involving an experience
requirement derived from the standard
for appointment of counsel in Federal
court proceedings in capital cases
(paragraph (b)(1)); an option involving
qualification standards set in a manner
consistent with relevant portions of the
Innocence Protection Act (paragraph
(b)(2)); and an option of assuring an
appropriate level of proficiency in other
ways, such as by requiring some
combination of experience and training
(paragraph (b)(3)).
Option 1: § 26.22(b)(1)—The
Competency Standards for Federal
Court Proceedings
As provided in paragraph (b)(1) of
§ 26.22, a State may satisfy chapter 154’s
requirement relating to counsel
competency by requiring appointment
of counsel ‘‘who have been admitted to
the bar for at least five years and have
at least three years of felony litigation
experience.’’ This is based on the
standard for appointed counsel in
capital case proceedings in Federal
court. See 18 U.S.C. 3599(a)–(e).
Because Congress has determined that
such a counsel competency standard is
adequate for capital cases in Federal
court proceedings, including
postconviction proceedings, see id.
§ 3599(a)(2), it will also be considered
adequate for chapter 154 purposes when
such cases are at the stage of State
postconviction review.
The counsel competency standards
for Federal court proceedings in capital
cases under 18 U.S.C. 3599 do not
require adherence to the five-year/threeyear experience requirement in all
cases, but provide that the court ‘‘for
good cause, may appoint another
attorney whose background, knowledge,
or experience would otherwise enable
him or her to properly represent the
defendant,’’ with due consideration of
the seriousness of the penalty (i.e.,
capital punishment) and the nature of
the litigation. Id. § 3599(d). For
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example, a court might consider it
appropriate to appoint an attorney who
is a law professor with expertise in
capital punishment law and training in
capital postconviction litigation to
represent a prisoner under sentence of
death, even if the attorney has less than
three years of felony litigation
experience. The rule in paragraph (b)(1)
accordingly does not require the
imposition of a five-year/three-year
minimum experience requirement in all
cases, but allows States that generally
impose such a requirement to permit the
appointment of other counsel who
would qualify for appointment under
the standards of 18 U.S.C. 3599, i.e.,
those whose background, knowledge, or
experience would otherwise enable
them to properly represent prisoners
under sentence of death considering the
seriousness of the penalty and the
nature of the litigation. This is reflected
in the language in paragraph (b)(1)
allowing appointment of counsel ‘‘who
would otherwise qualify for
appointment pursuant to the standards
for Federal habeas corpus proceedings
reviewing State capital cases under 18
U.S.C. 3599.’’
Option 2: § 26.22(b)(2)—The Innocence
Protection Act Standards
Paragraph (b)(2) in § 26.22 sets forth a
second option for States to satisfy the
counsel competency requirements of
chapter 154, specifically, by setting
qualification standards for appointment
of postconviction capital counsel in a
manner consistent with the Innocence
Protection Act (IPA), 42 U.S.C. 14163–
14163e. The IPA directs the Attorney
General to provide grants to States to
create or improve ‘‘effective system[s]
for providing competent legal
representation’’ in capital cases, 42
U.S.C. 14163(c)(1), and provides a
definition of ‘‘effective system’’ that is
largely based on elements of the
American Bar Association Guidelines
for the Appointment and Performance of
Defense Counsel in Death Penalty Cases
(rev. ed. Feb. 2003) (ABA Guidelines),
42 U.S.C. 14163(e). The IPA specifies
that such effective systems are to
include appointment of capital counsel
(i) by a public defender program, (ii) by
an entity composed of individuals with
demonstrated knowledge and expertise
in capital cases (other than current
prosecutors) that is established by
statute or by the highest State court with
criminal case jurisdiction, or (iii) by the
court appointing qualified attorneys
from a roster maintained by a State or
regional selection committee or similar
entity pursuant to a pre-existing
statutory procedure. 42 U.S.C.
14163(e)(1).
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Under the IPA requirements, the
appointing authority or an appropriate
designated entity must ‘‘establish
qualifications for attorneys who may be
appointed to represent indigents in
capital cases.’’ 42 U.S.C. 14163(e)(2)(A).
The IPA does not prescribe the content
of these qualifications but assumes that
the specifications regarding the nature
of the appointment or selection
authority and the associated
requirements for establishment of
qualifications can be relied on to
provide appropriate competency
standards. Paragraph (b)(2) in § 26.22
follows this legislative judgment in
relation to States’ satisfaction of the
counsel competency requirements of
chapter 154. Thus, a State’s capital
counsel mechanism will be deemed
adequate for purposes of chapter 154’s
counsel competency requirements if it
provides for the appointment of counsel
in State postconviction proceedings in
capital cases in a manner consistent
with 42 U.S.C. 14163(e)(1) and
establishes standards of competency for
such counsel in a manner consistent
with 42 U.S.C. 14163(e)(2)(A).
Option 3: § 26.22(b)(3)—Other
Standards Reasonably Assuring
Proficiency
In enacting chapter 154, ‘‘Congress did
not envision any specific competency
standards but, rather, intended the
states to have substantial discretion to
determine the substance of the
competency standards.’’ Spears, 283
F.3d at 1013 (citing 177 Cong. Rec.
S3191, S3220 (daily ed. Mar. 13, 1991)).
The options described in paragraphs
(b)(1) and (b)(2) in § 26.22 accordingly
do not exhaust the means by which
States may satisfy chapter 154’s
requirements concerning counsel
competency. Indeed, Congress in
formulating chapter 154 rejected a
recommendation that States uniformly
be required to satisfy the standards for
Federal court proceedings in capital
cases that currently appear in 18 U.S.C.
3599, see 73 FR at 75331, and in
amending chapter 154 in 2006 Congress
did not modify chapter 154 to require
adherence by States to the IPA
standards that had been enacted in 2004
but rather reenacted the more general
language of chapter 154 relating to
counsel competency.
Consequently, as provided in
paragraph (b)(3) in § 26.22, the Attorney
General will consider whether a State’s
counsel competency standards
reasonably assure appointment of
counsel with a level of proficiency
appropriate for State postconviction
litigation in capital cases, even if they
do not meet the particular criteria set
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forth in paragraph (b)(1) or (b)(2). As in
the courts’ consideration of the
adequacy of State competency standards
prior to the 2006 amendments to
chapter 154, no definite formula can be
prescribed for this review, and the
Attorney General will assess such State
mechanisms individually. Measures that
will be deemed relevant include
standards of experience, knowledge,
skills, training, education, or
combinations thereof that a State
requires attorneys to meet in order to be
eligible for appointment in State capital
postconviction proceedings. Cf. 18
U.S.C. 3599(d) (allowing appointment of
counsel whose background, knowledge,
or experience would otherwise enable
such counsel to properly represent the
defendant); Spears, 283 F.3d at 1012–13
(finding that competency standards
involving combination of experience,
proficiency, and education were
adequate under chapter 154); ABA
Guidelines §§ 5.1.B.2, 8.1.B, pp. 35, 46
(recommending skill and training
requirements for capital counsel). Also,
the rule in paragraphs (b)(1) and (b)(2)
of § 26.22 identifies particular
approaches that will be considered
adequate, specifically, those of the
Federal capital counsel statute (18
U.S.C. 3599) and of the Innocence
Protection Act (42 U.S.C. 14163(e)(1),
(2)(A)). These approaches accordingly
may serve as benchmarks, and States’
adoption of competency requirements
that are similar or that are likely to
result in even higher levels of
proficiency will weigh in favor of a
finding of adequacy for purposes of
chapter 154. As indicated in the
prefatory language in paragraph (b) of
§ 26.22, State capital counsel
mechanisms will be deemed adequate in
relation to counsel competency if they
meet or exceed the standards identified
in the paragraph. States will not be
penalized for going beyond the
minimum required by the rule. Thus, for
example, in relation to paragraph (b)(1),
State competency standards will be
considered sufficient if they require,
e.g., five years of felony litigation
experience rather than three, uniform
satisfaction of the five-year/three-year
experience requirement rather than
allowing some exception as in 18 U.S.C.
3599(d), or training requirements for
appointment in addition to the specified
experience requirement.
The rule does not require that all
counsel in a State qualify under the
same standard. Alternative standards
may be used so long as the State
mechanism requires that all counsel
satisfy some standard qualifying under
paragraph (b). Cf. 18 U.S.C. 3599(d)
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(allowing exceptions to categorical
experience requirement); Spears, 283
F.3d at 1013 (finding that alternative
standards are allowed under chapter
154). Hence, for example, a State system
could pass muster by requiring that
appointed counsel either satisfy an
experience standard sufficient under
paragraph (b)(1) or satisfy an alternative
standard sufficient under paragraph
(b)(3) involving more limited experience
but an additional training requirement.
Paragraph (c) of § 26.22—Compensation
of Counsel
Paragraph (c) of § 26.22 explains how
a State may satisfy the requirement that
it have established a mechanism for the
compensation of appointed counsel. 28
U.S.C. 2265(a)(1)(A). The corresponding
portion of the December 11, 2008
regulations assumed that levels of
compensation for purposes of chapter
154 were a matter of State discretion,
not subject to review by the Attorney
General, because the statute refers
simply to ‘‘compensation’’ and imposes
no further requirement that the
authorized compensation be ‘‘adequate’’
or ‘‘reasonable.’’ See 73 FR at 75331–32.
However, the broader statutory context
is the requirement that the State
establish a mechanism ‘‘for the
appointment [and] compensation * * *
of competent counsel.’’ 28 U.S.C.
2265(a)(1)(A). This requirement reflects
a determination by Congress that
reliance on unpaid volunteers to
represent indigent prisoners under
sentence of death is insufficient, and a
State mechanism affording inadequate
compensation could similarly fall short
in ensuring the availability of competent
counsel for appointment. Hence, when
a State relies on a compensation
incentive to secure competent counsel,
chapter 154 is reasonably construed to
permit the Attorney General to review
the adequacy of authorized
compensation. This understanding is
adopted in § 26.22(c) of the proposed
rule.
Paragraph (c)(1) in § 26.22 describes a
number of possible compensation
standards that will be considered
adequate for purposes of chapter 154,
generally using as benchmarks the
authorizations for compensation of
capital counsel that have been deemed
adequate in other Acts of Congress.
The first option, appearing in
paragraph (c)(1)(A), is compensation
comparable to that authorized by
Congress for representation in Federal
habeas corpus proceedings reviewing
State capital cases. 18 U.S.C. 3599(g)(1).
This level of compensation should
similarly be adequate to ensure the
availability of competent counsel for
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11709
appointment in such cases at the stage
of State postconviction review.
The second option, appearing in
paragraph (c)(1)(B), is compensation
comparable to that of retained counsel
who meet competency standards
sufficient under paragraph (b). The
Innocence Protection Act and the ABA
Guidelines similarly endorse reliance on
market rates for legal representation to
provide adequate compensation for
appointed capital counsel. See 42 U.S.C.
14163(e)(2)(F)(ii)(II); ABA Guidelines
§ 9.1.B.3, p. 49. Compensation sufficient
to induce competent attorneys to carry
out such representation for hire should
likewise be sufficient to attract
competent attorneys to accept
appointments for such representation.
The third option, appearing in
paragraph (c)(1)(C), is compensation
comparable to that of appointed counsel
in State appellate or trial proceedings in
capital cases. Cf. 18 U.S.C. 3599(g)(1)
(authorization for compensation of
capital counsel not differentiating
between compensation at different
stages of representation). The
compensation afforded at the stages of
trial and appeal must be sufficient to
secure competent attorneys to provide
representation because effective legal
representation of indigents is
constitutionally required at those stages.
Comparable compensation should
accordingly be sufficient for that
purpose at the postconviction stage.
The fourth option, appearing in
paragraph (c)(1)(D), is compensation
comparable to that of attorneys
representing the State in State
postconviction proceedings in capital
cases. This option also follows the
Innocence Protection Act and the ABA
Guidelines, which provide that capital
counsel employed by defender
organizations should be compensated
on a salary scale commensurate with the
salary scale of prosecutors in the
jurisdiction. 42 U.S.C.
14163(e)(2)(F)(ii)(I); ABA Guidelines
§ 9.1.B.2, p. 49. The rule allows this
approach for compensation of both
public defenders and private counsel,
but recognizes that private defense
counsel may have to pay from their own
pockets overhead expenses that publicly
employed prosecutors do not bear. The
rule accordingly specifies that, if
paragraph (c)(1)(D) is relied on to justify
the level of compensation authorized for
private counsel, the compensation
standard should take account of
overhead costs (if any) that are not
otherwise payable as reasonable
litigation expenses. Cf. Baker v.
Corcoran, 220 F.3d 276, 285–86 (4th Cir.
2000) (finding that compensation
resulting in substantial losses to
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appointed counsel was inadequate
under chapter 154).
In comparing a State’s compensation
standards to the benchmarks identified
in paragraph (c)(1), both hourly rates
and overall limits on compensation will
be taken into account. For example,
under paragraph (c)(1)(C), suppose that
State law authorizes the same hourly
rate for compensation of appointed
capital counsel at the appellate stage
and in postconviction proceedings, but
it specially imposes a low overall limit
on compensable hours at the
postconviction stage. The compensation
authorized at the respective stages may
then not be comparable in any realistic
sense, and the objective of ensuring the
availability of competent counsel for
postconviction representation may not
be realized, because counsel who
accepted such representation would
effectively be required to function as
uncompensated volunteers to the extent
they needed to work beyond the
maximum number of compensable
hours. This does not mean that State
compensation provisions will be
deemed inadequate if they specially
prescribe presumptive limits on overall
compensation at the postconviction
stage, but comparability to the
paragraph (c)(1) benchmarks may then
depend on whether the State provides
means for authorizing compensation
beyond the presumptive maximum
where necessary. Cf. Spears, 283 F.3d at
1015 (approving a presumptive 200hour limit under chapter 154 where
compensation was available for work
beyond that limit if reasonable); Mata v.
Johnson, 99 F.3d 1261, 1266 (5th Cir.
1996), vacated in part on reh’g on other
grounds, 105 F.3d (5th Cir. 1997)
(overall $7500 limit on compensation
was not facially inadequate under
chapter 154 and was not shown
inadequate in the particular case).
As with the counsel competency
standards of paragraph (b), the counsel
compensation standards of paragraph
(c)(1) provide only a floor that States are
free to exceed, and not all counsel must
be compensated in conformity with a
single standard. Rather, a State may
adopt alternative standards, each
comparable to or exceeding some
benchmark identified in paragraph
(c)(1), and provide for compensation of
different counsel or classes thereof in
conformity with different standards. For
example, a State might provide for
representation of some indigent capital
defendants in postconviction
proceedings by appointed private
counsel and some by public defender
personnel, compensate the private
counsel in conformity with paragraph
(c)(1)(C), and compensate the public
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defender counsel in conformity with
paragraph (c)(1)(D).
The rule recognizes that the
compensation options set out in
paragraph (c)(1) of § 26.22 are not
necessarily the only means by which a
State may provide competent counsel.
State compensation provisions for
capital counsel have been deemed
adequate for purposes of chapter 154
and other Federal laws independent of
any comparison to the benchmarks in
paragraph (c)(1). See 42 U.S.C.
14163(e)(2)(F)(i) (State may compensate
under qualifying statutory procedure
predating the Innocence Protection Act);
Spears, 283 F.3d at 1015 (State could
compensate at ‘‘a rate of up to $100 an
hour, a rate that neither Petitioner nor
amici argue was unreasonable’’). Also, a
State may secure representation for
indigent capital defendants in
postconviction proceedings by means
not dependent on any special financial
incentive for accepting appointments,
such as by providing salaried public
defender personnel to carry out such
assignments as part of their duties.
Accordingly, under paragraph (c)(2) in
§ 26.22, capital counsel mechanisms
involving compensation provisions that
do not satisfy paragraph (c)(1) are
approvable if they are otherwise
reasonably designed to ensure the
availability of competent counsel.
Paragraph (d) of § 26.22—Payment of
Reasonable Litigation Expenses
Paragraph (d) of § 26.22 incorporates
the requirement in 28 U.S.C.
2265(a)(1)(A) to provide for the payment
of reasonable litigation expenses. An
inflexible cap on reimbursable litigation
expenses in capital postconviction
proceedings could contravene this
requirement by foreclosing the payment
of costs incurred by counsel, even if
determined by the court to be
reasonably necessary. However, the
requirement does not foreclose a
presumptive limit if the State provides
means for authorizing payment of
litigation expenses beyond the limit
where necessary. Cf. 18 U.S.C. 3599(f),
(g)(2) (establishing presumptive $7500
limit on payment for litigation expenses
in federal court proceedings in capital
cases, with authority for chief judge or
delegee to approve higher amounts);
Mata, 99 F.3d at 1266 (concluding that
overall $2500 limit on payment of
litigation expenses was not facially
inadequate under chapter 154 and was
not shown to be inadequate in the
particular case).
Section 26.23
Section 26.23 in the rule sets out the
mechanics of the certification process
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for States seeking to opt in to chapter
154.
Paragraph (a) provides that an
appropriate State official may request in
writing that the Attorney General
determine whether the State meets the
requirements for chapter 154
certification. Paragraph (b) provides that
the Attorney General will make the
request available on the Internet and
solicit public comment on the request
by publishing a notice in the Federal
Register. It requires Internet availability
because State requests for certification
may include supporting materials not
readily reproducible or viewable in the
Federal Register, such as copies of State
statutes, rules, and judicial decisions
bearing on the State’s satisfaction of
chapter 154’s requirements for
certification.
As provided in paragraph (c), the
Attorney General will review the State’s
request, including consideration of
timely public comments received in
response to the Federal Register notice.
The Attorney General will decide
whether the State has satisfied the
requirements for chapter 154
certification and will publish the
certification 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, as that date is the effective
date of the certification. 28 U.S.C.
2265(a)(2).
Paragraph (d) addresses the effect of
changes or alleged changes in a State’s
capital counsel mechanism after that
mechanism has been certified by the
Attorney General. The paragraph first
addresses situations involving changes
or alleged changes in a State’s capital
counsel mechanism prior to State
postconviction proceedings in a capital
case. Chapter 154’s expedited Federal
habeas corpus procedures are available
only in cases in which both of two
statutory conditions are met: (i) The
State’s capital counsel mechanism has
been certified by the Attorney General,
28 U.S.C. 2261(b)(1), and (ii) ‘‘counsel
was appointed pursuant to that
mechanism’’—i.e., the mechanism
certified by the Attorney General—
unless the petitioner ‘‘validly waived
counsel * * * [or] retained counsel
* * * or * * * was found not to be
indigent,’’ 28 U.S.C. 2261(b)(2). The first
sentence of paragraph (d) therefore
notes that certification by the Attorney
General under chapter 154 reflects the
Attorney General’s determination that
the State capital counsel mechanism
examined in the Attorney General’s
review satisfies chapter 154’s
requirements. If a State later
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discontinues that mechanism before
counsel is appointed in a given State
postconviction proceeding, then counsel
in that case will not have been
‘‘appointed pursuant to’’ the mechanism
that was approved by the Attorney
General and chapter 154 would
accordingly be inapplicable. Similarly,
if a State later changes or is alleged to
have changed its capital counsel
mechanism, then chapter 154 may lead
to litigation in Federal habeas courts,
with those courts responsible for
deciding whether the State has actually
changed its mechanism and, if so,
whether the change means that counsel
(even if appointed) was appointed
pursuant to what is in effect a new and
uncertified mechanism, rather than the
mechanism certified by the Attorney
General.
To avoid such litigation, the second
sentence of paragraph (d) provides that
a State may seek a new certification by
the Attorney General if it changes or is
alleged to have changed a previously
certified capital counsel mechanism. If
a State wishes to improve on a certified
capital counsel mechanism, then
certification by the Attorney General of
the new or revised mechanism will
allow the State to avoid Federal habeas
court litigation over whether chapter
154 is applicable to cases involving
appointments made pursuant to that
mechanism. Similarly, if legal questions
are raised about the continued
applicability of chapter 154 based on
changes or alleged changes in a certified
capital counsel mechanism, a State may
seek a new certification by the Attorney
General that its current mechanism
satisfies chapter 154’s requirements,
ensuring the continued applicability of
chapter 154’s expedited Federal habeas
corpus procedures. By seeking a new
certification of a new or revised capital
counsel mechanism, a State may ensure
that it is the Attorney General, subject
to review by the D.C. Circuit Court of
Appeals, who determines whether its
capital counsel mechanism is in present
compliance with chapter 154’s
requirements, see 28 U.S.C. 2261(b)(1),
2265(c)(2), and avoid litigation over that
matter in the Federal habeas courts.
The final sentence in paragraph (d)
states that subsequent changes in a
State’s capital counsel mechanism do
not affect the applicability of chapter
154 in cases in which a mechanism
certified by the Attorney General existed
throughout State postconviction
proceedings in the case. For example,
suppose that the Attorney General
certifies a State’s capital counsel
mechanism in 2012, the State
postconviction proceedings in a capital
case are carried out in 2013 and 2014
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and counsel is appointed in those
proceedings pursuant to the certified
mechanism, and Federal habeas corpus
proceedings in the case commence in
2015. Suppose further that the State
makes some change in 2015 to its
counsel competency or compensation
standards. Because a certified capital
counsel mechanism would have been in
place throughout State postconviction
review, the prerequisites for expedited
Federal habeas corpus review under
chapter 154 would be satisfied, see 28
U.S.C. 2261(b). That result would not be
affected by later changes in the State’s
postconviction capital counsel
mechanism.
Regulatory Certifications
Executive Order 12866—Regulatory
Planning and Review
This regulation 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),
and, accordingly, this rule has been
reviewed by the Office of Management
and Budget. The determination that this
is a significant regulatory action,
however, does not reflect a conclusion
that it is ‘‘likely to result in a rule that
may * * * [h]ave an annual effect on
the economy of $100 million or more’’
or other adverse effects as described in
section 3(f)(1) of the Executive Order.
This rule will have no economic effect
unless particular States (i) decide, in
their discretion, that any costs entailed
in meeting the chapter 154 capital
counsel requirements are offset or
justified by resulting cost reductions or
other benefits to the State under chapter
154, and (ii) accordingly undertake to
make any changes needed in their
capital counsel systems to meet the
chapter 154 requirements and apply to
the Attorney General for certification.
If States decide to apply for chapter
154 certification, their resulting costs
will mainly depend on (i) the number of
capital cases these States litigate in State
postconviction proceedings, and (ii) the
incremental difference (if any) between
their current per-case capital litigation
costs and the corresponding costs under
a chapter 154-compliant system.
Regarding the number of capital cases,
at the end of 2009, 36 states held 3,118
prisoners under sentence of death. See
Bureau of Justice Statistics, Office
Justice Programs, U.S. Department of
Justice, Capital Punishment, 2009—
Statistical Tables at 8, table 4 (Dec.
2010), available at https://
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11711
bjs.ojp.usdoj.gov/content/pub/pdf/
cp09st.pdf. Regarding the incremental
costs of satisfying the chapter 154
standards, States accounting for the
great majority of capital cases in the
United States already provide for
appointment of counsel in State
postconviction proceedings. These
States may still fall short of satisfying
the chapter 154 standards relating to
payment of litigation expenses or
compensation of counsel. However, the
costs necessary to correct such
deficiencies would be limited to the
difference between existing caps and
any higher amounts necessary to defray
reasonable litigation expenses and to
secure competent attorneys for
appointment, and this rule affords
States a variety of options that may
minimize any resulting increase in
costs.
Even assuming that all States will
upgrade their postconviction capital
counsel mechanisms to the extent
necessary to satisfy the proposed rule,
and that the number of capital cases
pending at any time in State
postconviction proceedings is as high as
2,000, the total cost for the States could
not reach $100 million annually unless
the average increase in litigation costs
were $50,000 each year for each case in
State postconviction proceedings. There
is no reason to believe that costs would
increase to that degree, and any
increased costs at that stage would be
subject to offset by savings resulting
from chapter 154’s expedited
procedures in subsequent Federal
habeas corpus review. See 28 U.S.C.
2262, 2264, 2266. Moreover, because the
States would more fully defray the costs
of representing indigent capital
defendants in State postconviction
proceedings, there would be less need
for representation by private counsel on
a pro bono basis, often arranged through
postconviction capital defense projects.
Thus, State costs also would be offset by
reduced costs for private entities and
individuals who otherwise would
provide representation, reducing the
overall economic effect. For the
foregoing reasons, it is not expected that
this rule will or may have an annual
effect on the economy of $100 million
or more.
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
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habeas procedures of chapter 154 of title
28 of the United States 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.
Unfunded Mandates Reform Act of 1995
This rule will not result in aggregate
expenditures by state, local and tribal
governments or by the private sector of
$100,000,000 or more in any one year,
and it will not significantly or uniquely
affect small governments. Therefore, no
actions were deemed necessary under
the provisions of the Unfunded
Mandates Reform Act of 1995.
srobinson on DSKHWCL6B1PROD with PROPOSALS
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect
on the economy of $100 million or
more; a major increase in costs or prices;
or significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of United States-based companies to
compete with foreign-based companies
in domestic and export markets.
List of Subjects in 28 CFR Part 26
Law enforcement officers, Prisoners.
Accordingly, for the reasons set forth
in the preamble, part 26 of chapter I of
title 28 of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 26—DEATH SENTENCES
PROCEDURES
1. The authority citation for part 26
continues 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.
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2. Add Subpart B to read as follows:
Subpart B—Certification Process for
State Capital Counsel Systems
Sec.
26.20
26.21
26.22
26.23
§ 26.20
Purpose.
Definitions.
Requirements.
Certification process.
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.
§ 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.
§ 26.22
Requirements.
The Attorney General will certify that
a State meets the requirements for
certification under 28 U.S.C. 2261 and
2265 if the Attorney General determines
that the State has established a
mechanism for the appointment of
counsel for indigent prisoners under
sentence of death in State
postconviction proceedings that satisfies
the following standards:
(a) 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
requested 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;
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(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.
(b) The mechanism must provide for
appointment of competent counsel as
defined in State standards of
competency for such appointments that
meet or exceed any of the following:
(1) Appointment of counsel who have
been admitted to the bar for at least five
years and have at least three years of
felony litigation experience or who
would otherwise qualify for
appointment pursuant to the standards
for Federal habeas corpus proceedings
reviewing State capital cases under 18
U.S.C. 3599;
(2) Appointment of counsel meeting
qualification standards established in
conformity with 42 U.S.C. 14163(e)(1),
(2)(A); or
(3) Appointment of counsel satisfying
qualification standards that reasonably
assure a level of proficiency appropriate
for State postconviction litigation in
capital cases.
(c) The mechanism must provide for
compensation of appointed counsel.
(1) A State’s provision for
compensation will be deemed adequate
if the authorized compensation is
comparable to or exceeds—
(i) The compensation of counsel
appointed pursuant to 18 U.S.C. 3599 in
Federal habeas corpus proceedings
reviewing capital cases from the State;
(ii) The compensation of retained
counsel in State postconviction
proceedings in capital cases who meet
State standards of competency sufficient
under paragraph (b) of this section;
(iii) The compensation of appointed
counsel in State appellate or trial
proceedings in capital cases; or
(iv) The compensation of attorneys
representing the State in State
postconviction proceedings in capital
cases, subject to adjustment for private
counsel to take account of overhead
costs not otherwise payable as
reasonable litigation expenses.
(2) Provisions for compensation not
satisfying the criteria in paragraph (c)(1)
of this section will be deemed adequate
only if the State mechanism is otherwise
reasonably designed to ensure the
availability for appointment of counsel
who meet State standards of
competency sufficient under paragraph
(b) of this section.
(d) The mechanism must provide for
payment of reasonable litigation
expenses of appointed counsel, which
may include presumptive limits on
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Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules
payment only if means are authorized
for payment of necessary expenses
above such limits.
§ 26.23
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 141 and 142
Certification process.
[Docket No. OW–2009–0090; FRL–9274–2]
srobinson on DSKHWCL6B1PROD with PROPOSALS
(a) An appropriate State official may
request in writing that the Attorney
General determine whether the State
meets the requirements for certification
under § 26.22.
(b) Upon receipt of a State’s request
for certification, the Attorney General
will make the request publicly available
on the Internet (including any
supporting materials included in the
request) and publish a notice in the
Federal Register—
(1) Indicating that the State has
requested certification;
(2) Identifying the Internet address at
which the public may view the State’s
request for certification; and
(3) Soliciting public comment on the
request.
(c) The State’s request will be
reviewed by the Attorney General. The
review will include consideration of
timely public comments received in
response to the Federal Register notice
under paragraph (b) 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.
(d) A certification by the Attorney
General reflects the Attorney General’s
determination that the State capital
counsel mechanism reviewed under
paragraph (c) of this section satisfies 28
U.S.C. chapter 154’s requirements. A
State may request a new certification by
the Attorney General to ensure the
continued applicability of chapter 154
in cases in which State postconviction
proceedings occur after a change or
alleged change in the State’s certified
capital counsel mechanism. Changes in
a State’s capital counsel mechanism do
not affect the applicability of chapter
154 in any case in which a mechanism
certified by the Attorney General existed
throughout State postconviction
proceedings in the case.
Dated: February 25, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011–4800 Filed 3–2–11; 8:45 am]
BILLING CODE 4410–18–P
VerDate Mar<15>2010
16:45 Mar 02, 2011
Jkt 223001
RIN 2040–AF10
Revisions to the Unregulated
Contaminant Monitoring Regulation
(UCMR 3) for Public Water Systems
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The 1996 amendments to the
Safe Drinking Water Act (SDWA)
require that the United States
Environmental Protection Agency (EPA
or the Agency) establish criteria for a
program to monitor unregulated
contaminants and to publish a list of
contaminants to be monitored every five
years. This action meets the SDWA
requirement by proposing the design for
the third UCMR cycle (i.e., UCMR 3).
EPA is proposing six EPA-developed
analytical methods, and four equivalent
consensus organization-developed
methods to monitor for 28 new UCMR
chemical contaminants. In addition,
EPA proposes monitoring for two
viruses, for a total of 30 UCMR 3
contaminants. As envisioned, virus
analysis (along with related analysis for
pathogen indicators) would be
conducted in laboratories under EPA
contract. UCMR 3 provides EPA and
other interested parties with
scientifically valid data on the
occurrence of these contaminants in
drinking water, permitting the
assessment of the number of people
potentially being exposed and the levels
of that exposure. These data are the
primary source of occurrence and
exposure information the Agency uses
to determine whether to regulate these
contaminants. In addition, as part of an
Expedited Methods Update, this
proposed action also would amend
regulations concerning inorganic
chemical sampling and analytical
requirements. A minor editorial
correction to the table moves methods
from the ‘‘Other’’ column to the ‘‘ASTM’’
column, as it applies to the inorganic
chemical sampling and analytical
requirements. The UCMR program is not
affected by these changes.
DATES: Comments must be received on
or before May 2, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. OW–2009–
0090, by one of the following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
SUMMARY:
PO 00000
Frm 00030
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• E-mail: OW–Docket@epa.gov.
• Mail: Send three copies of your
comments and any enclosures to: Water
Docket, United States Environmental
Protection Agency, Mail Code 282211T,
1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, Attention
Docket ID No. OW–2009–0090.
Commenters should use a separate
paragraph for each issue discussed. In
addition, please mail a copy of your
comments on the information collection
provisions to the Office of Information
and Regulatory Affairs, Office of
Management and Budget (OMB), Attn:
Desk Officer for EPA, 725 17th St., NW.,
Washington, DC 20503.
• Hand Delivery: Deliver your
comments to Water Docket, EPA Docket
Center, Environmental Protection
Agency, Room 3334, 1301 Constitution
Ave., NW., Washington, DC, Attention
Docket ID No. OW–2009–0090. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–OW–2009–0090.
EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
E:\FR\FM\03MRP1.SGM
03MRP1
Agencies
[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Proposed Rules]
[Pages 11705-11713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4800]
=======================================================================
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DEPARTMENT OF JUSTICE
28 CFR Part 26
[Docket No. OJP (DOJ) 1540; AG Order No. 3255-2011]
RIN 1121-AA77
Office of the Attorney General; Certification Process for State
Capital Counsel Systems
AGENCY: Department of Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Section 2265 of title 28, United States Code, 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. 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. This proposed rule sets forth the
required regulations for the certification procedure.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before June 1, 2011. Comments received by mail will
be considered timely if they are
[[Page 11706]]
postmarked on or before that date. The electronic Federal Docket
Management System (FDMS) will accept comments until Midnight Eastern
Time at the end of that day.
ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW.,
Room 4234, Washington, DC 20530. To ensure proper handling, please
reference OAG Docket No. 1540 on your correspondence. You may submit
comments electronically or view an electronic version of this proposed
rule at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lisa Ellman, Office of Legal Policy,
(202) 514-4601 (not a toll-free number).
SUPPLEMENTARY INFORMATION: Posting of Public Comments. Please note that
all comments received are considered part of the public record and made
available for public inspection online at https://www.regulations.gov.
Such information includes personal identifying information (such as
your name and address) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name and address) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You also must locate all the personal
identifying information you do not want posted online in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
https://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
Overview
Chapter 154 of title 28, United States Code, makes special
procedures available to a State respondent in Federal habeas corpus
proceedings involving review of State capital judgments, but only if
the Attorney General has certified ``that [the] State has established a
mechanism for providing counsel in postconviction proceedings as
provided in section 2265,'' and if ``counsel was appointed pursuant to
that mechanism, petitioner validly waived counsel, petitioner retained
counsel, or petitioner was found not to be indigent.'' 28 U.S.C.
2261(b). Section 2265(a)(1) provides that, in order for a State to
qualify for the special habeas procedures, the Attorney General must
determine that ``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 [capital] prisoners'' and that the State ``provides
standards of competency for the appointment of counsel in [such
proceedings].''
Chapter 154 has been in place since the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public
Law 104-132, section 107, 110 Stat. 1214, 1221-26 (1996), but was
amended by the USA PATRIOT Improvement and Reauthorization Act of 2005,
Public Law 109-177, section 507, 120 Stat. 192, 250-51 (2006). Prior to
the 2006 amendment, the determination of a State's eligibility for the
special procedures was left to the Federal habeas courts. The 2006
amendment assigned 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.
Rulemaking History
Section 2265(b) directs the Attorney General to promulgate
regulations to implement the certification procedure. To fulfill this
mandate, the Department of Justice published a proposed rule in the
Federal Register on June 6, 2007, that proposed adding a new subpart
entitled ``Certification Process for State Capital Counsel Systems'' to
28 CFR part 26. 72 FR 31217. The comment period ended on August 6,
2007. The Department published a notice on August 9, 2007, reopening
the comment period, 72 FR 44816, and the reopened comment period ended
on September 24, 2007. The final rule establishing the chapter 154
certification procedure was published on December 11, 2008, 73 FR
75327, with an effective date of January 12, 2009.
In January 2009, the United States District Court for the Northern
District of California enjoined the Department ``from putting into
effect the rule * * * without first providing an additional comment
period of at least thirty days and publishing a response to any
comments received during such period.'' Habeas Corpus Resource Ctr. v.
U.S. Dep't of Justice, No. 08-2649, 2009 WL 185423, at *10 (Jan. 20,
2009) (preliminary injunction); Habeas Corpus Resource Ctr. v. U.S.
Dep't of Justice, No. 08-2649, slip op. at 1 (Jan. 8, 2009) (temporary
restraining order). On February 6, 2009, the Department solicited
further public comment, with the comment period closing on April 6,
2009. 74 FR 6131.
As the Department reviewed the submitted comments, it considered
further the statutory requirements governing the regulatory
implementation of the chapter 154 certification procedures. The
Attorney General determined that chapter 154 gave him greater
discretion in making certification determinations than the December 11,
2008 regulations would have allowed. Therefore, the Department
published a notice in the Federal Register on May 25, 2010, proposing
to revoke the December 11, 2008 regulations by removing them from the
Code of Federal Regulations pending the completion of a new rulemaking
process, during which the Department would further consider what
standards and procedures were appropriate. 75 FR 29217. The comment
period closed on June 24, 2010. On November 23, 2010, the Department
published a final rule removing the December 11, 2008 regulations. 75
FR 71353.
The rule proposed today is the result of the Attorney General's
reconsideration of the appropriate standards and procedures for chapter
154 certification. Sections 26.20 and 26.21 of the proposed rule are,
respectively, a general statement of purpose and a section defining
certain terms appearing in chapter 154. These sections are unchanged
from the December 11, 2008 final rule. Section 26.22 explains the
requirements for certification under chapter 154, relating to
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in State postconviction proceedings in
capital cases. It is significantly different from the corresponding
section in the December 11, 2008 regulations, particularly with respect
to counsel
[[Page 11707]]
competency and compensation standards. Section 26.23 sets out the
procedures for accepting, obtaining public comment on, and deciding
State requests for chapter 154 certification. It is similar in
substance to the corresponding section of the December 11, 2008
regulations, but in some respects simplified and updated. A section-by-
section analysis of the new proposed rule follows.
Section-by-Section Analysis
Section 26.20
Section 26.20, which is unchanged from the December 11, 2008
regulations, explains the rule's purpose to implement the certification
procedure for chapter 154.
Section 26.21
Section 26.21, which is also unchanged from the December 11, 2008
regulations, defines 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.'' Prior to the 2006 amendments to
chapter 154, Federal courts entertaining habeas corpus applications by
State prisoners under sentence of death would decide which set of
habeas corpus procedures applied--chapter 153 or chapter 154 of title
28--and State attorneys general responsible for such litigation could
request determinations that their States had satisfied the requirements
for the applicability of chapter 154. The 2006 amendments to chapter
154 were not intended to disable the State attorneys general from their
pre-existing role in this area and State attorneys general continue in
most instances to be the officials with the capacity and motivation to
seek chapter 154 certification for their States. See 73 FR at 75329-30.
Section 26.21 of the rule accordingly provides that the appropriate
official to seek chapter 154 certification is normally 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 (concurrent collateral and direct review) were
replaced by the 2006 amendments with provisions that permit chapter 154
certification for all States under uniform standards, regardless of
their timing of collateral review vis-a-vis direct review. Compare 28
U.S.C. 2261(b), 2265 (2006) (as amended by the USA PATRIOT Improvement
and Reauthorization Act of 2005), with 28 U.S.C. 2261(b), 2265 (2000)
(as enacted by AEDPA); 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.
See 73 FR at 75332-33, 75337 (reviewing relevant legislative and
regulatory history). The provisions of chapter 154, as well as its
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. 22, 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).
Paragraph (a) of Sec. 26.22--Appointment of Counsel
Paragraph (a) of Sec. 26.22 sets out the requirements of chapter
154 concerning appointment of counsel that appear in 28 U.S.C. 2261(c)-
(d).
Paragraph (b) of Sec. 26.22--Competent Counsel
Paragraph (b) of Sec. 26.22 explains how States may satisfy the
requirement to provide for appointment of ``competent counsel'' and to
provide ``standards of competency'' for such appointments. 28 U.S.C.
2265(a)(1)(A), (C).
The corresponding portion of the December 11, 2008 regulations
construed the reference to appointment of ``competent counsel'' in
section 2265(a)(1)(A) as a cross-reference to counsel meeting the
competency standards provided by the State pursuant to section
2265(a)(1)(C). It accordingly treated the definition of such standards
as a matter of State discretion, not subject to further review by the
Attorney General. See 73 FR at 75331. However, these provisions may
also reasonably be construed as permitting the Attorney General to
require a threshold of minimum counsel competency, while recognizing
substantial State discretion in setting counsel competency standards.
See generally Memorandum for the Attorney General from David J. Barron,
Acting Assistant Attorney General, Office of Legal Counsel, Re: The
Scope of the Attorney General's Authority in Certifying Whether a State
Has Satisfied the Requirements for Appointment of Competent Post-
Conviction Counsel in Chapter 154 of Title 28, United States Code (Dec.
16, 2009), available at https://www.justice.gov/olc/. The latter
understanding is supported by cases interpreting chapter 154, see,
e.g., Spears v. Stewart, 283 F.3d 992, 1013 (9th Cir. 2002)
(recognizing that ``Congress * * * intended the states to have
substantial discretion to determine the substance of the competency
[[Page 11708]]
standards'' under chapter 154 while still reviewing the adequacy of
such standards), and by the original Powell Committee proposal from
which many features of chapter 154 ultimately derive, see 135 Cong.
Rec. 24692, 24696 (Oct. 16, 1989). This understanding is adopted in
Sec. 26.22(b) of the proposed rule.
The specific minimum standards set forth in paragraph (b) are based
on judgments by Congress in federal laws concerning adequate capital
counsel competency standards and on judicial interpretation of the
counsel competency requirements of chapter 154. Three broad options are
provided for States to satisfy this requirement--an option involving an
experience requirement derived from the standard for appointment of
counsel in Federal court proceedings in capital cases (paragraph
(b)(1)); an option involving qualification standards set in a manner
consistent with relevant portions of the Innocence Protection Act
(paragraph (b)(2)); and an option of assuring an appropriate level of
proficiency in other ways, such as by requiring some combination of
experience and training (paragraph (b)(3)).
Option 1: Sec. 26.22(b)(1)--The Competency Standards for Federal Court
Proceedings
As provided in paragraph (b)(1) of Sec. 26.22, a State may satisfy
chapter 154's requirement relating to counsel competency by requiring
appointment of counsel ``who have been admitted to the bar for at least
five years and have at least three years of felony litigation
experience.'' This is based on the standard for appointed counsel in
capital case proceedings in Federal court. See 18 U.S.C. 3599(a)-(e).
Because Congress has determined that such a counsel competency standard
is adequate for capital cases in Federal court proceedings, including
postconviction proceedings, see id. Sec. 3599(a)(2), it will also be
considered adequate for chapter 154 purposes when such cases are at the
stage of State postconviction review.
The counsel competency standards for Federal court proceedings in
capital cases under 18 U.S.C. 3599 do not require adherence to the
five-year/three-year experience requirement in all cases, but provide
that the court ``for good cause, may appoint another attorney whose
background, knowledge, or experience would otherwise enable him or her
to properly represent the defendant,'' with due consideration of the
seriousness of the penalty (i.e., capital punishment) and the nature of
the litigation. Id. Sec. 3599(d). For example, a court might consider
it appropriate to appoint an attorney who is a law professor with
expertise in capital punishment law and training in capital
postconviction litigation to represent a prisoner under sentence of
death, even if the attorney has less than three years of felony
litigation experience. The rule in paragraph (b)(1) accordingly does
not require the imposition of a five-year/three-year minimum experience
requirement in all cases, but allows States that generally impose such
a requirement to permit the appointment of other counsel who would
qualify for appointment under the standards of 18 U.S.C. 3599, i.e.,
those whose background, knowledge, or experience would otherwise enable
them to properly represent prisoners under sentence of death
considering the seriousness of the penalty and the nature of the
litigation. This is reflected in the language in paragraph (b)(1)
allowing appointment of counsel ``who would otherwise qualify for
appointment pursuant to the standards for Federal habeas corpus
proceedings reviewing State capital cases under 18 U.S.C. 3599.''
Option 2: Sec. 26.22(b)(2)--The Innocence Protection Act Standards
Paragraph (b)(2) in Sec. 26.22 sets forth a second option for
States to satisfy the counsel competency requirements of chapter 154,
specifically, by setting qualification standards for appointment of
postconviction capital counsel in a manner consistent with the
Innocence Protection Act (IPA), 42 U.S.C. 14163-14163e. The IPA directs
the Attorney General to provide grants to States to create or improve
``effective system[s] for providing competent legal representation'' in
capital cases, 42 U.S.C. 14163(c)(1), and provides a definition of
``effective system'' that is largely based on elements of the American
Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (rev. ed. Feb. 2003) (ABA
Guidelines), 42 U.S.C. 14163(e). The IPA specifies that such effective
systems are to include appointment of capital counsel (i) by a public
defender program, (ii) by an entity composed of individuals with
demonstrated knowledge and expertise in capital cases (other than
current prosecutors) that is established by statute or by the highest
State court with criminal case jurisdiction, or (iii) by the court
appointing qualified attorneys from a roster maintained by a State or
regional selection committee or similar entity pursuant to a pre-
existing statutory procedure. 42 U.S.C. 14163(e)(1).
Under the IPA requirements, the appointing authority or an
appropriate designated entity must ``establish qualifications for
attorneys who may be appointed to represent indigents in capital
cases.'' 42 U.S.C. 14163(e)(2)(A). The IPA does not prescribe the
content of these qualifications but assumes that the specifications
regarding the nature of the appointment or selection authority and the
associated requirements for establishment of qualifications can be
relied on to provide appropriate competency standards. Paragraph (b)(2)
in Sec. 26.22 follows this legislative judgment in relation to States'
satisfaction of the counsel competency requirements of chapter 154.
Thus, a State's capital counsel mechanism will be deemed adequate for
purposes of chapter 154's counsel competency requirements if it
provides for the appointment of counsel in State postconviction
proceedings in capital cases in a manner consistent with 42 U.S.C.
14163(e)(1) and establishes standards of competency for such counsel in
a manner consistent with 42 U.S.C. 14163(e)(2)(A).
Option 3: Sec. 26.22(b)(3)--Other Standards Reasonably Assuring
Proficiency
In enacting chapter 154, ``Congress did not envision any specific
competency standards but, rather, intended the states to have
substantial discretion to determine the substance of the competency
standards.'' Spears, 283 F.3d at 1013 (citing 177 Cong. Rec. S3191,
S3220 (daily ed. Mar. 13, 1991)). The options described in paragraphs
(b)(1) and (b)(2) in Sec. 26.22 accordingly do not exhaust the means
by which States may satisfy chapter 154's requirements concerning
counsel competency. Indeed, Congress in formulating chapter 154
rejected a recommendation that States uniformly be required to satisfy
the standards for Federal court proceedings in capital cases that
currently appear in 18 U.S.C. 3599, see 73 FR at 75331, and in amending
chapter 154 in 2006 Congress did not modify chapter 154 to require
adherence by States to the IPA standards that had been enacted in 2004
but rather reenacted the more general language of chapter 154 relating
to counsel competency.
Consequently, as provided in paragraph (b)(3) in Sec. 26.22, the
Attorney General will consider whether a State's counsel competency
standards reasonably assure appointment of counsel with a level of
proficiency appropriate for State postconviction litigation in capital
cases, even if they do not meet the particular criteria set
[[Page 11709]]
forth in paragraph (b)(1) or (b)(2). As in the courts' consideration of
the adequacy of State competency standards prior to the 2006 amendments
to chapter 154, no definite formula can be prescribed for this review,
and the Attorney General will assess such State mechanisms
individually. Measures that will be deemed relevant include standards
of experience, knowledge, skills, training, education, or combinations
thereof that a State requires attorneys to meet in order to be eligible
for appointment in State capital postconviction proceedings. Cf. 18
U.S.C. 3599(d) (allowing appointment of counsel whose background,
knowledge, or experience would otherwise enable such counsel to
properly represent the defendant); Spears, 283 F.3d at 1012-13 (finding
that competency standards involving combination of experience,
proficiency, and education were adequate under chapter 154); ABA
Guidelines Sec. Sec. 5.1.B.2, 8.1.B, pp. 35, 46 (recommending skill
and training requirements for capital counsel). Also, the rule in
paragraphs (b)(1) and (b)(2) of Sec. 26.22 identifies particular
approaches that will be considered adequate, specifically, those of the
Federal capital counsel statute (18 U.S.C. 3599) and of the Innocence
Protection Act (42 U.S.C. 14163(e)(1), (2)(A)). These approaches
accordingly may serve as benchmarks, and States' adoption of competency
requirements that are similar or that are likely to result in even
higher levels of proficiency will weigh in favor of a finding of
adequacy for purposes of chapter 154. As indicated in the prefatory
language in paragraph (b) of Sec. 26.22, State capital counsel
mechanisms will be deemed adequate in relation to counsel competency if
they meet or exceed the standards identified in the paragraph. States
will not be penalized for going beyond the minimum required by the
rule. Thus, for example, in relation to paragraph (b)(1), State
competency standards will be considered sufficient if they require,
e.g., five years of felony litigation experience rather than three,
uniform satisfaction of the five-year/three-year experience requirement
rather than allowing some exception as in 18 U.S.C. 3599(d), or
training requirements for appointment in addition to the specified
experience requirement.
The rule does not require that all counsel in a State qualify under
the same standard. Alternative standards may be used so long as the
State mechanism requires that all counsel satisfy some standard
qualifying under paragraph (b). Cf. 18 U.S.C. 3599(d) (allowing
exceptions to categorical experience requirement); Spears, 283 F.3d at
1013 (finding that alternative standards are allowed under chapter
154). Hence, for example, a State system could pass muster by requiring
that appointed counsel either satisfy an experience standard sufficient
under paragraph (b)(1) or satisfy an alternative standard sufficient
under paragraph (b)(3) involving more limited experience but an
additional training requirement.
Paragraph (c) of Sec. 26.22--Compensation of Counsel
Paragraph (c) of Sec. 26.22 explains how a State may satisfy the
requirement that it have established a mechanism for the compensation
of appointed counsel. 28 U.S.C. 2265(a)(1)(A). The corresponding
portion of the December 11, 2008 regulations assumed that levels of
compensation for purposes of chapter 154 were a matter of State
discretion, not subject to review by the Attorney General, because the
statute refers simply to ``compensation'' and imposes no further
requirement that the authorized compensation be ``adequate'' or
``reasonable.'' See 73 FR at 75331-32. However, the broader statutory
context is the requirement that the State establish a mechanism ``for
the appointment [and] compensation * * * of competent counsel.'' 28
U.S.C. 2265(a)(1)(A). This requirement reflects a determination by
Congress that reliance on unpaid volunteers to represent indigent
prisoners under sentence of death is insufficient, and a State
mechanism affording inadequate compensation could similarly fall short
in ensuring the availability of competent counsel for appointment.
Hence, when a State relies on a compensation incentive to secure
competent counsel, chapter 154 is reasonably construed to permit the
Attorney General to review the adequacy of authorized compensation.
This understanding is adopted in Sec. 26.22(c) of the proposed rule.
Paragraph (c)(1) in Sec. 26.22 describes a number of possible
compensation standards that will be considered adequate for purposes of
chapter 154, generally using as benchmarks the authorizations for
compensation of capital counsel that have been deemed adequate in other
Acts of Congress.
The first option, appearing in paragraph (c)(1)(A), is compensation
comparable to that authorized by Congress for representation in Federal
habeas corpus proceedings reviewing State capital cases. 18 U.S.C.
3599(g)(1). This level of compensation should similarly be adequate to
ensure the availability of competent counsel for appointment in such
cases at the stage of State postconviction review.
The second option, appearing in paragraph (c)(1)(B), is
compensation comparable to that of retained counsel who meet competency
standards sufficient under paragraph (b). The Innocence Protection Act
and the ABA Guidelines similarly endorse reliance on market rates for
legal representation to provide adequate compensation for appointed
capital counsel. See 42 U.S.C. 14163(e)(2)(F)(ii)(II); ABA Guidelines
Sec. 9.1.B.3, p. 49. Compensation sufficient to induce competent
attorneys to carry out such representation for hire should likewise be
sufficient to attract competent attorneys to accept appointments for
such representation.
The third option, appearing in paragraph (c)(1)(C), is compensation
comparable to that of appointed counsel in State appellate or trial
proceedings in capital cases. Cf. 18 U.S.C. 3599(g)(1) (authorization
for compensation of capital counsel not differentiating between
compensation at different stages of representation). The compensation
afforded at the stages of trial and appeal must be sufficient to secure
competent attorneys to provide representation because effective legal
representation of indigents is constitutionally required at those
stages. Comparable compensation should accordingly be sufficient for
that purpose at the postconviction stage.
The fourth option, appearing in paragraph (c)(1)(D), is
compensation comparable to that of attorneys representing the State in
State postconviction proceedings in capital cases. This option also
follows the Innocence Protection Act and the ABA Guidelines, which
provide that capital counsel employed by defender organizations should
be compensated on a salary scale commensurate with the salary scale of
prosecutors in the jurisdiction. 42 U.S.C. 14163(e)(2)(F)(ii)(I); ABA
Guidelines Sec. 9.1.B.2, p. 49. The rule allows this approach for
compensation of both public defenders and private counsel, but
recognizes that private defense counsel may have to pay from their own
pockets overhead expenses that publicly employed prosecutors do not
bear. The rule accordingly specifies that, if paragraph (c)(1)(D) is
relied on to justify the level of compensation authorized for private
counsel, the compensation standard should take account of overhead
costs (if any) that are not otherwise payable as reasonable litigation
expenses. Cf. Baker v. Corcoran, 220 F.3d 276, 285-86 (4th Cir. 2000)
(finding that compensation resulting in substantial losses to
[[Page 11710]]
appointed counsel was inadequate under chapter 154).
In comparing a State's compensation standards to the benchmarks
identified in paragraph (c)(1), both hourly rates and overall limits on
compensation will be taken into account. For example, under paragraph
(c)(1)(C), suppose that State law authorizes the same hourly rate for
compensation of appointed capital counsel at the appellate stage and in
postconviction proceedings, but it specially imposes a low overall
limit on compensable hours at the postconviction stage. The
compensation authorized at the respective stages may then not be
comparable in any realistic sense, and the objective of ensuring the
availability of competent counsel for postconviction representation may
not be realized, because counsel who accepted such representation would
effectively be required to function as uncompensated volunteers to the
extent they needed to work beyond the maximum number of compensable
hours. This does not mean that State compensation provisions will be
deemed inadequate if they specially prescribe presumptive limits on
overall compensation at the postconviction stage, but comparability to
the paragraph (c)(1) benchmarks may then depend on whether the State
provides means for authorizing compensation beyond the presumptive
maximum where necessary. Cf. Spears, 283 F.3d at 1015 (approving a
presumptive 200-hour limit under chapter 154 where compensation was
available for work beyond that limit if reasonable); Mata v. Johnson,
99 F.3d 1261, 1266 (5th Cir. 1996), vacated in part on reh'g on other
grounds, 105 F.3d (5th Cir. 1997) (overall $7500 limit on compensation
was not facially inadequate under chapter 154 and was not shown
inadequate in the particular case).
As with the counsel competency standards of paragraph (b), the
counsel compensation standards of paragraph (c)(1) provide only a floor
that States are free to exceed, and not all counsel must be compensated
in conformity with a single standard. Rather, a State may adopt
alternative standards, each comparable to or exceeding some benchmark
identified in paragraph (c)(1), and provide for compensation of
different counsel or classes thereof in conformity with different
standards. For example, a State might provide for representation of
some indigent capital defendants in postconviction proceedings by
appointed private counsel and some by public defender personnel,
compensate the private counsel in conformity with paragraph (c)(1)(C),
and compensate the public defender counsel in conformity with paragraph
(c)(1)(D).
The rule recognizes that the compensation options set out in
paragraph (c)(1) of Sec. 26.22 are not necessarily the only means by
which a State may provide competent counsel. State compensation
provisions for capital counsel have been deemed adequate for purposes
of chapter 154 and other Federal laws independent of any comparison to
the benchmarks in paragraph (c)(1). See 42 U.S.C. 14163(e)(2)(F)(i)
(State may compensate under qualifying statutory procedure predating
the Innocence Protection Act); Spears, 283 F.3d at 1015 (State could
compensate at ``a rate of up to $100 an hour, a rate that neither
Petitioner nor amici argue was unreasonable''). Also, a State may
secure representation for indigent capital defendants in postconviction
proceedings by means not dependent on any special financial incentive
for accepting appointments, such as by providing salaried public
defender personnel to carry out such assignments as part of their
duties. Accordingly, under paragraph (c)(2) in Sec. 26.22, capital
counsel mechanisms involving compensation provisions that do not
satisfy paragraph (c)(1) are approvable if they are otherwise
reasonably designed to ensure the availability of competent counsel.
Paragraph (d) of Sec. 26.22--Payment of Reasonable Litigation Expenses
Paragraph (d) of Sec. 26.22 incorporates the requirement in 28
U.S.C. 2265(a)(1)(A) to provide for the payment of reasonable
litigation expenses. An inflexible cap on reimbursable litigation
expenses in capital postconviction proceedings could contravene this
requirement by foreclosing the payment of costs incurred by counsel,
even if determined by the court to be reasonably necessary. However,
the requirement does not foreclose a presumptive limit if the State
provides means for authorizing payment of litigation expenses beyond
the limit where necessary. Cf. 18 U.S.C. 3599(f), (g)(2) (establishing
presumptive $7500 limit on payment for litigation expenses in federal
court proceedings in capital cases, with authority for chief judge or
delegee to approve higher amounts); Mata, 99 F.3d at 1266 (concluding
that overall $2500 limit on payment of litigation expenses was not
facially inadequate under chapter 154 and was not shown to be
inadequate in the particular case).
Section 26.23
Section 26.23 in the rule sets out the mechanics of the
certification process for States seeking to opt in to chapter 154.
Paragraph (a) provides that an appropriate State official may
request in writing that the Attorney General determine whether the
State meets the requirements for chapter 154 certification. Paragraph
(b) provides that the Attorney General will make the request available
on the Internet and solicit public comment on the request by publishing
a notice in the Federal Register. It requires Internet availability
because State requests for certification may include supporting
materials not readily reproducible or viewable in the Federal Register,
such as copies of State statutes, rules, and judicial decisions bearing
on the State's satisfaction of chapter 154's requirements for
certification.
As provided in paragraph (c), the Attorney General will review the
State's request, including consideration of timely public comments
received in response to the Federal Register notice. The Attorney
General will decide whether the State has satisfied the requirements
for chapter 154 certification and will publish the certification 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, as that date is
the effective date of the certification. 28 U.S.C. 2265(a)(2).
Paragraph (d) addresses the effect of changes or alleged changes in
a State's capital counsel mechanism after that mechanism has been
certified by the Attorney General. The paragraph first addresses
situations involving changes or alleged changes in a State's capital
counsel mechanism prior to State postconviction proceedings in a
capital case. Chapter 154's expedited Federal habeas corpus procedures
are available only in cases in which both of two statutory conditions
are met: (i) The State's capital counsel mechanism has been certified
by the Attorney General, 28 U.S.C. 2261(b)(1), and (ii) ``counsel was
appointed pursuant to that mechanism''--i.e., the mechanism certified
by the Attorney General--unless the petitioner ``validly waived counsel
* * * [or] retained counsel * * * or * * * was found not to be
indigent,'' 28 U.S.C. 2261(b)(2). The first sentence of paragraph (d)
therefore notes that certification by the Attorney General under
chapter 154 reflects the Attorney General's determination that the
State capital counsel mechanism examined in the Attorney General's
review satisfies chapter 154's requirements. If a State later
[[Page 11711]]
discontinues that mechanism before counsel is appointed in a given
State postconviction proceeding, then counsel in that case will not
have been ``appointed pursuant to'' the mechanism that was approved by
the Attorney General and chapter 154 would accordingly be inapplicable.
Similarly, if a State later changes or is alleged to have changed its
capital counsel mechanism, then chapter 154 may lead to litigation in
Federal habeas courts, with those courts responsible for deciding
whether the State has actually changed its mechanism and, if so,
whether the change means that counsel (even if appointed) was appointed
pursuant to what is in effect a new and uncertified mechanism, rather
than the mechanism certified by the Attorney General.
To avoid such litigation, the second sentence of paragraph (d)
provides that a State may seek a new certification by the Attorney
General if it changes or is alleged to have changed a previously
certified capital counsel mechanism. If a State wishes to improve on a
certified capital counsel mechanism, then certification by the Attorney
General of the new or revised mechanism will allow the State to avoid
Federal habeas court litigation over whether chapter 154 is applicable
to cases involving appointments made pursuant to that mechanism.
Similarly, if legal questions are raised about the continued
applicability of chapter 154 based on changes or alleged changes in a
certified capital counsel mechanism, a State may seek a new
certification by the Attorney General that its current mechanism
satisfies chapter 154's requirements, ensuring the continued
applicability of chapter 154's expedited Federal habeas corpus
procedures. By seeking a new certification of a new or revised capital
counsel mechanism, a State may ensure that it is the Attorney General,
subject to review by the D.C. Circuit Court of Appeals, who determines
whether its capital counsel mechanism is in present compliance with
chapter 154's requirements, see 28 U.S.C. 2261(b)(1), 2265(c)(2), and
avoid litigation over that matter in the Federal habeas courts.
The final sentence in paragraph (d) states that subsequent changes
in a State's capital counsel mechanism do not affect the applicability
of chapter 154 in cases in which a mechanism certified by the Attorney
General existed throughout State postconviction proceedings in the
case. For example, suppose that the Attorney General certifies a
State's capital counsel mechanism in 2012, the State postconviction
proceedings in a capital case are carried out in 2013 and 2014 and
counsel is appointed in those proceedings pursuant to the certified
mechanism, and Federal habeas corpus proceedings in the case commence
in 2015. Suppose further that the State makes some change in 2015 to
its counsel competency or compensation standards. Because a certified
capital counsel mechanism would have been in place throughout State
postconviction review, the prerequisites for expedited Federal habeas
corpus review under chapter 154 would be satisfied, see 28 U.S.C.
2261(b). That result would not be affected by later changes in the
State's postconviction capital counsel mechanism.
Regulatory Certifications
Executive Order 12866--Regulatory Planning and Review
This regulation 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), and, accordingly, this rule has been reviewed by
the Office of Management and Budget. The determination that this is a
significant regulatory action, however, does not reflect a conclusion
that it is ``likely to result in a rule that may * * * [h]ave an annual
effect on the economy of $100 million or more'' or other adverse
effects as described in section 3(f)(1) of the Executive Order. This
rule will have no economic effect unless particular States (i) decide,
in their discretion, that any costs entailed in meeting the chapter 154
capital counsel requirements are offset or justified by resulting cost
reductions or other benefits to the State under chapter 154, and (ii)
accordingly undertake to make any changes needed in their capital
counsel systems to meet the chapter 154 requirements and apply to the
Attorney General for certification.
If States decide to apply for chapter 154 certification, their
resulting costs will mainly depend on (i) the number of capital cases
these States litigate in State postconviction proceedings, and (ii) the
incremental difference (if any) between their current per-case capital
litigation costs and the corresponding costs under a chapter 154-
compliant system. Regarding the number of capital cases, at the end of
2009, 36 states held 3,118 prisoners under sentence of death. See
Bureau of Justice Statistics, Office Justice Programs, U.S. Department
of Justice, Capital Punishment, 2009--Statistical Tables at 8, table 4
(Dec. 2010), available at https://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf. Regarding the incremental costs of satisfying the chapter
154 standards, States accounting for the great majority of capital
cases in the United States already provide for appointment of counsel
in State postconviction proceedings. These States may still fall short
of satisfying the chapter 154 standards relating to payment of
litigation expenses or compensation of counsel. However, the costs
necessary to correct such deficiencies would be limited to the
difference between existing caps and any higher amounts necessary to
defray reasonable litigation expenses and to secure competent attorneys
for appointment, and this rule affords States a variety of options that
may minimize any resulting increase in costs.
Even assuming that all States will upgrade their postconviction
capital counsel mechanisms to the extent necessary to satisfy the
proposed rule, and that the number of capital cases pending at any time
in State postconviction proceedings is as high as 2,000, the total cost
for the States could not reach $100 million annually unless the average
increase in litigation costs were $50,000 each year for each case in
State postconviction proceedings. There is no reason to believe that
costs would increase to that degree, and any increased costs at that
stage would be subject to offset by savings resulting from chapter
154's expedited procedures in subsequent Federal habeas corpus review.
See 28 U.S.C. 2262, 2264, 2266. Moreover, because the States would more
fully defray the costs of representing indigent capital defendants in
State postconviction proceedings, there would be less need for
representation by private counsel on a pro bono basis, often arranged
through postconviction capital defense projects. Thus, State costs also
would be offset by reduced costs for private entities and individuals
who otherwise would provide representation, reducing the overall
economic effect. For the foregoing reasons, it is not expected that
this rule will or may have an annual effect on the economy of $100
million or more.
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
[[Page 11712]]
habeas procedures of chapter 154 of title 28 of the United States 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.
Unfunded Mandates Reform Act of 1995
This rule will not result in aggregate expenditures by state, local
and tribal governments or by the private sector of $100,000,000 or more
in any one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 26
Law enforcement officers, Prisoners.
Accordingly, for the reasons set forth in the preamble, part 26 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 26--DEATH SENTENCES PROCEDURES
1. The authority citation for part 26 continues 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.
2. Add 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.
The Attorney General will certify that a State meets the
requirements for certification under 28 U.S.C. 2261 and 2265 if the
Attorney General determines that the State has established a mechanism
for the appointment of counsel for indigent prisoners under sentence of
death in State postconviction proceedings that satisfies the following
standards:
(a) 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 requested 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.
(b) The mechanism must provide for appointment of competent counsel
as defined in State standards of competency for such appointments that
meet or exceed any of the following:
(1) Appointment of counsel who have been admitted to the bar for at
least five years and have at least three years of felony litigation
experience or who would otherwise qualify for appointment pursuant to
the standards for Federal habeas corpus proceedings reviewing State
capital cases under 18 U.S.C. 3599;
(2) Appointment of counsel meeting qualification standards
established in conformity with 42 U.S.C. 14163(e)(1), (2)(A); or
(3) Appointment of counsel satisfying qualification standards that
reasonably assure a level of proficiency appropriate for State
postconviction litigation in capital cases.
(c) The mechanism must provide for compensation of appointed
counsel.
(1) A State's provision for compensation will be deemed adequate if
the authorized compensation is comparable to or exceeds--
(i) The compensation of counsel appointed pursuant to 18 U.S.C.
3599 in Federal habeas corpus proceedings reviewing capital cases from
the State;
(ii) The compensation of retained counsel in State postconviction
proceedings in capital cases who meet State standards of competency
sufficient under paragraph (b) of this section;
(iii) The compensation of appointed counsel in State appellate or
trial proceedings in capital cases; or
(iv) The compensation of attorneys representing the State in State
postconviction proceedings in capital cases, subject to adjustment for
private counsel to take account of overhead costs not otherwise payable
as reasonable litigation expenses.
(2) Provisions for compensation not satisfying the criteria in
paragraph (c)(1) of this section will be deemed adequate only if the
State mechanism is otherwise reasonably designed to ensure the
availability for appointment of counsel who meet State standards of
competency sufficient under paragraph (b) of this section.
(d) The mechanism must provide for payment of reasonable litigation
expenses of appointed counsel, which may include presumptive limits on
[[Page 11713]]
payment only if means are authorized for payment of necessary expenses
above such limits.
Sec. 26.23 Certification process.
(a) An appropriate State official may request in writing that the
Attorney General determine whether the State meets the requirements for
certification under Sec. 26.22.
(b) Upon receipt of a State's request for certification, the
Attorney General will make the request publicly available on the
Internet (including any supporting materials included in the request)
and publish a notice in the Federal Register--
(1) Indicating that the State has requested certification;
(2) Identifying the Internet address at which the public may view
the State's request for certification; and
(3) Soliciting public comment on the request.
(c) The State's request will be reviewed by the Attorney General.
The review will include consideration of timely public comments
received in response to the Federal Register notice under paragraph (b)
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.
(d) A certification by the Attorney General reflects the Attorney
General's determination that the State capital counsel mechanism
reviewed under paragraph (c) of this section satisfies 28 U.S.C.
chapter 154's requirements. A State may request a new certification by
the Attorney General to ensure the continued applicability of chapter
154 in cases in which State postconviction proceedings occur after a
change or alleged change in the State's certified capital counsel
mechanism. Changes in a State's capital counsel mechanism do not affect
the applicability of chapter 154 in any case in which a mechanism
certified by the Attorney General existed throughout State
postconviction proceedings in the case.
Dated: February 25, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-4800 Filed 3-2-11; 8:45 am]
BILLING CODE 4410-18-P