Certification Process for State Capital Counsel System, 58160-58184 [2013-22766]

Agencies

• Department of Justice

[Federal Register Volume 78, Number 184 (Monday, September 23, 2013)]
[Rules and Regulations]
[Pages 58160-58184]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22766]


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DEPARTMENT OF JUSTICE

28 CFR Part 26

[Docket No. 1540; AG Order No. 3399-2013]
RIN 1121-AA77


Certification Process for State Capital Counsel System

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

ACTION: Final rule.

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SUMMARY: Chapter 154 of title 28, United States Code, provides special 
procedures for Federal habeas corpus review of cases brought by 
indigent prisoners in State custody who are subject to a capital 
sentence. These special procedures are available to States that the 
Attorney General has certified as having established mechanisms for the 
appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel in State postconviction proceedings 
brought by such prisoners, and as providing standards of competency for 
the appointment of counsel in these proceedings. This rule sets forth 
the regulations for the certification procedure.

DATES: Effective Date: This rule is effective October 23, 2013.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, U.S. Department of 
Justice, Office of Legal Policy, 950 Pennsylvania Avenue NW., 
Washington, DC 20530, at (202) 514-8059 or Robert.Hinchman@usdoj.gov.

SUPPLEMENTARY INFORMATION: Chapter 154 of title 28, United States Code, 
makes special procedures applicable in Federal habeas corpus review of 
State capital judgments 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 ``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, if 
requested by an appropriate State official, the Attorney General must

[[Page 58161]]

determine ``whether the State has established a mechanism for the 
appointment, compensation, and payment of reasonable litigation 
expenses of competent counsel in State [capital] postconviction 
proceedings brought by indigent prisoners'' and ``whether the State 
provides standards of competency for the appointment of counsel in 
[such] proceedings.''
    Chapter 154 was enacted as part of the Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA), Public Law 104-132, section 107, 110 
Stat. 1214, 1221-26 (1996), and was amended by the USA PATRIOT 
Improvement and Reauthorization Act of 2005, Public Law 109-177, 
section 507, 120 Stat. 192, 250-51 (2006). Before the 2006 amendments, 
the regional Federal courts in their review of State capital cases 
determined States' eligibility for the chapter 154 habeas corpus review 
procedures. The 2006 amendments re-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, and added a provision stating that there are no 
requirements for certification or for application of chapter 154 other 
than those expressly stated in the chapter, 28 U.S.C. 2265(a)(3). The 
effects of the 2006 amendments are explained in an opinion of the 
Department's Office of Legal Counsel and, where relevant to a specific 
provision in the rule, elsewhere in this preamble. See The Attorney 
General's Authority in Certifying Whether a State Has Satisfied the 
Requirements for Appointment of Competent Counsel for Purposes of 
Capital Conviction Review Proceedings, 33 Op. O.L.C. ----, at *12 (Dec. 
16, 2009) (``OLC Opinion''), available at https://www.justice.gov/olc/opinions.htm.
    Section 2265(b) directs the Attorney General to promulgate 
regulations to implement the certification procedure under chapter 154. 
The Attorney General accordingly published a proposed rule in the 
Federal Register on June 6, 2007, to add 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. A final rule establishing the chapter 154 certification 
procedure was published on December 11, 2008, 73 FR 75327 (the ``2008 
regulations''), 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 (N.D. Cal. 
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 5, 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 2008 
regulations would have allowed. Therefore, the Department published a 
notice in the Federal Register on May 25, 2010, proposing to remove the 
2008 regulations pending the completion of a new rulemaking process, 
during which the Department would further consider what 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 2008 regulations. 75 FR 71353.
    The Department published a new proposed rule on March 3, 2011. 76 
FR 11705. The comment period closed on June 1, 2011. The Department 
published a supplemental notice of proposed rulemaking on February 13, 
2012, which identified a number of possible changes the Department was 
considering based on comments received in response to the publication 
of the proposed rule. 77 FR 7559. The comment period closed on March 
14, 2012.

Summary of Comments

    About 60 comments were received on the proposed rule, including 
both comments received on the initial notice of proposed rulemaking and 
comments received on the supplemental notice of proposed rulemaking.
    Some commenters urged the Department to publish, in effect, a third 
notice of proposed rulemaking so as to disclose the exact text of the 
final rule--particularly the language regarding the effect of 
compliance with benchmarks on certification--before its publication. 
However, the Department published the full text of the proposed rule in 
the original notice of proposed rulemaking. 76 FR 11705. It also 
published a supplemental notice of proposed rulemaking to provide a 
further opportunity for public input on changes to the rule under 
consideration following initial comment. 77 FR 7559. The text of this 
final rule is the same as that published in the original notice of 
proposed rulemaking, except for five changes to that text that were 
precisely described in the supplemental notice, further clarifying 
amendments (affecting Sec. Sec.  26.20, 26. 21, 26.22(b), (c), and (d), 
and 26.23(c)), and minor technical changes. All of the changes made to 
the text directly pertain to subjects and issues identified as under 
consideration by the terms of the original notice and supplemental 
notice and are responsive to the public comments received on those 
notices. The extensive comments received in response to the two 
publications confirm that interested members of the public were able to 
comment intelligently on the issues affecting the formulation of the 
final rule and in fact did so.
    In the ensuing summary, comments that concern the general approach 
of the rule or that affect a number of provisions in the rule are 
discussed initially, followed by discussion of comments that pertain 
more specifically to particular provisions in the rule.

General Comments

The Basic Approach of the Rule

    Two commenters argued that the Attorney General lacks authority to 
articulate substantive standards for chapter 154 certification, 
contending instead that chapter 154 limits the Attorney General to 
performing ministerial tasks when exercising his or her certification 
responsibilities. These comments are not well-founded. Chapter 154 is 
reasonably construed to allow the Attorney General to define within 
reasonable bounds the chapter's requirements for certification, and to 
evaluate whether a State's mechanism is adequate for purposes of 
ensuring that it will result in the appointment of competent counsel. 
The reasons for this conclusion are summarized in the OLC Opinion and 
elsewhere in this preamble.
    Many commenters agreed that the Attorney General may appropriately 
specify and apply a substantive Federal standard that State mechanisms 
must meet to satisfy chapter 154's requirements for certification, and 
this rule specifies that standard, within the limits of the statutory 
scheme it implements: (i) Appointment--Chapter

[[Page 58162]]

154 requires the Attorney General to certify ``whether the State has 
established a mechanism for the appointment . . . of . . . counsel'' in 
State capital collateral proceedings. This rule provides further 
specification regarding the statutory appointment procedures and 
discusses the express statutory provisions that require such 
appointments to occur in a reasonably timely fashion. (ii) Competent 
Counsel--Chapter 154 provides that the Attorney General must determine 
whether the State has established a mechanism for the appointment of 
``competent counsel'' in State capital collateral proceedings, and 
``whether the State provides standards of competency for the 
appointment of counsel'' in such proceedings. This rule provides two 
``benchmark'' competency standards that are presumptively sufficient to 
warrant certification while still leaving States some leeway to adopt 
other standards so long as they reasonably assure a level of 
proficiency appropriate for State postconviction litigation in capital 
cases. (iii) Compensation and payment of reasonable litigation 
expenses--Chapter 154 additionally requires the Attorney General to 
determine whether the State has established a mechanism for the 
``compensation'' and ``payment of reasonable litigation expenses'' of 
competent counsel in State capital collateral proceedings. This rule 
provides four benchmark compensation standards that are presumptively 
adequate while again leaving States some significant discretion to 
formulate alternative compensation schemes, if reasonably designed to 
ensure the availability and timely appointment of competent counsel. 
And as to all of these matters, this rule provides that the Attorney 
General will consider a State's submission requesting certification and 
any input from interested parties received through a public comment 
procedure before determining whether certification is warranted.
    Several commenters, however, argued that the certification 
standards and procedures promulgated in this rule (and described in the 
prior notice and supplemental notice of proposed rulemaking) do not go 
far enough in dictating the standards States must meet, or in providing 
for sufficient review and oversight by the Attorney General of State 
compliance with mechanisms for which certification is sought. For the 
reasons discussed generally below, and elsewhere in this preamble in 
the context of specific provisions of the rule, the Department has not 
adopted the changes proposed by these commenters.
    Some of these commenters urged that the rule incorporate counsel 
competency provisions that would have the effect of eliminating or 
largely displacing State discretion to develop, within appropriate 
bounds, mechanisms for ensuring that competent counsel are appointed. 
One commenter, for instance, proposed that the rule should prescribe 
uniform national competency standards that must be adopted by any and 
all States seeking certification. Other commenters contended that the 
rule should incorporate measures as to prior experience in capital and 
postconviction capital proceedings, specialized training, demonstrated 
competence according to performance standards, and removal of attorneys 
who fail to provide effective representation--and find deficient, 
without exception, any State system that does not incorporate all of 
these features. The Department did not accept these comments, believing 
that they risk conflict with the statutory scheme, which leaves room 
for States to formulate their own standards so long as they reasonably 
assure the availability and appointment of competent counsel. See OLC 
Opinion at *12-13; see also 135 Cong. Rec. 24696 (1989) (report of the 
Judicial Conference's Ad Hoc Committee on Federal Habeas Corpus in 
Capital Cases (``the Powell Committee report'') from which many of the 
relevant features of Chapter 154 derive, explaining that giving States 
``wide latitude to establish a mechanism that complies with [the 
statutory requirements]'' is ``more consistent with the federal-state 
balance'').
    Raising another issue, several comments proposed that the rule 
require a showing of State compliance with its own established 
mechanism as a condition of certification. As envisioned by these 
comments, the Attorney General, when presented with a request for 
certification, would review a State's record of appointments in 
individual cases to verify that the appointments were made in 
conformity with the State's established mechanism. These comments were 
not adopted because the statutory scheme does not call for such case-
specific oversight by the Attorney General of State compliance with a 
mechanism it has established.
    Chapter 154 in its current formulation states two preconditions for 
the chapter's applicability in a particular case: (1) As provided in 
section 2261(b)(1), ``the Attorney General of the United States 
certifies that a State has established a mechanism for providing 
counsel in postconviction proceedings as provided in section 2265''; 
and (2) as provided in section 2261(b)(2), ``counsel was appointed 
pursuant to that mechanism, petitioner validly waived counsel, 
petitioner retained counsel, or petitioner was found not to be 
indigent.'' Of these two functions, only the general certification 
function is assigned to ``the Attorney General of the United States.'' 
The case-specific function of ascertaining whether counsel was 
appointed pursuant to the certified mechanism is reserved to Federal 
habeas courts, which can address individual irregularities and decide 
whether the Federal habeas corpus review procedures of chapter 154 will 
apply in particular cases. If the commenters were correct in asserting 
that the Attorney General should withhold certification unless he or 
she finds that the State has complied with its established mechanism in 
every case, there would have been little need for Congress to have 
included section 2261(b)(2). Cf. Ashmus v. Woodford, 202 F.3d 1160, 
1168 & n.13 (9th Cir. 2000) (chapter 154 designed to avoid case-by-case 
analysis of counsel's competence by requiring binding appointment 
standards). Moreover, if a State establishes a new mechanism for 
appointment of competent counsel (in response to this rule and its 
articulation of benchmark standards) and requests at the outset that 
the Attorney General determine its adequacy, chapter 154 should not be 
read to foreclose certification simply because the Attorney General 
would not yet have a basis to examine the State's compliance with the 
newly established system.
    Though the Department rejects the suggestion that the Attorney 
General's certification determination should depend on whether a State 
complies with its own mechanism in isolated cases, the question of 
whether a State has ``established'' a mechanism is a conceptually 
distinct matter that the statutory framework does charge the Attorney 
General with determining, see 28 U.S.C. 2265(a)(1)(A)-(B). The 
requirement of having ``established'' a mechanism consistent with 
chapter 154 presupposes that the State has adopted and implemented 
standards consistent with the chapter's requirements concerning counsel 
appointment, competency, compensation, and expenses. Thus, the rule 
allows for the possibility that the Attorney General will need to 
address situations in which there has been a wholesale failure to 
implement one or more material elements of a mechanism described in a 
State's certification submission, such as

[[Page 58163]]

when a State's submission relying on Sec.  26.22(b)(1)(ii) in the rule 
points to a statute that authorizes a State agency to create and fund a 
statewide attorney monitoring program, but the agency never actually 
expends any funds, or expends funds to provide for monitoring of 
attorneys in only a few of its cities. Addressing any such situations 
would require careful consideration of the specific features of a 
mechanism presented for certification, and is therefore best left to 
individual certification decisions. Other than in these situations, 
should they arise, questions of compliance by a State with the 
standards of its capital counsel mechanism will be a matter for the 
Federal habeas courts.
    Finally, a few of the comments could be read to suggest that 
chapter 154 requires the Attorney General to certify a State mechanism 
only if he or she examines and is satisfied by the actual performance 
of postconviction counsel following appointment. On such an 
understanding, an assessment by the Attorney General of the performance 
of attorneys in State habeas proceedings (e.g., what investigation was 
done or not done, or what arguments were made or not made in a habeas 
petition) would inform a decision as to whether the State's mechanism 
adequately provides for appointment of competent postconviction counsel 
and, accordingly, whether chapter 154 certification is warranted. To 
the extent that the comments urged such an interpretation, it was 
rejected in formulating the rule.
    The actual requirements under chapter 154 relating to counsel 
competency are establishment by a State of ``a mechanism for the 
appointment . . . of competent counsel'' in State capital collateral 
proceedings, and provision by the State of ``standards of competency 
for the appointment of counsel'' in such proceedings. Neither of these 
provisions suggests that the Attorney General is required to inquire 
into the facts of how counsel performed following appointment in all or 
some subset of cases. Rather, both frame their requirements regarding 
counsel competency as matters relating to appointment, and are 
naturally understood as contemplating an inquiry into whether a State 
has put in place adequate qualification standards that counsel must 
meet to be eligible for appointment. This understanding is supported by 
the Powell Committee report. The report explained that Federal review 
would examine whether a State's mechanism for appointing capital 
postconviction counsel comports with the statutory requirements ``as 
opposed to the competency of particular counsel.'' 135 Cong. Rec. 24696 
(1989). It further explained that, in contrast to the focus on ``the 
performance of a capital defendant's trial and appellate counsel,'' 
``[t]he effectiveness of state and federal postconviction counsel is a 
matter that can and must be dealt with in the appointment process.'' 
Id.

The Role of the Attorney General

    Some commenters asserted that the Attorney General has an inherent 
conflict of interest that should disqualify him from making 
certification determinations under chapter 154. These commenters 
claimed that the Attorney General's prosecutorial functions and 
responsibilities would render him unable to objectively evaluate State 
capital counsel systems. The remediation proposed by these commenters 
included the suggestion that the Attorney General delegate his 
functions under chapter 154 to some other official or division within 
the Department of Justice that the commenters believed would be free of 
the supposed conflict of interest. Commenters also proposed that the 
Attorney General only exercise his certification responsibilities on 
the basis of very specific, inflexible criteria that would leave no 
room for judgment or discretion by the Attorney General in evaluating a 
given State system under chapter 154.
    As an initial matter, the Attorney General cannot refrain from 
carrying out the functions assigned to him by chapter 154: The law 
requires him to discharge those functions. Congress assigned the 
certification function to the Attorney General after having heard 
arguments concerning a purported conflict of interest similar to those 
now advanced by the commenters. See 28 U.S.C. 2265(a)(1); Habeas 
Reform: The Streamlined Procedures Act: Hearing Before the S. Comm. on 
the Judiciary, 109th Cong. 26-27 (2005); see also id. at 54 (written 
statement of Professor Eric M. Freedman on behalf of the American Bar 
Association) (``The Attorney General is the nation's chief prosecutor 
and thus is hardly an appropriate officer to decide whether a state has 
kept its part of the `opt in' bargain.''). Moreover, the enactment of 
chapter 154 is not the first time that Congress has assigned to the 
Attorney General the task of evaluating State efforts to provide 
attorney representation to petitioners convicted of a capital crime. 
For example, the Innocence Protection Act of 2004, Public Law 108-405, 
Title IV, Subtitle B, 118 Stat. 2260, 2286-92 (2004) (``IPA''), 
contemplates the administration by the Attorney General of a program to 
improve the quality of legal representation provided to indigent 
petitioners in State capital cases, including the making of grants to 
States willing to implement federally prescribed capital counsel 
standards, continuing oversight of the capital defense systems of 
States that accept funding, and negotiation or direction by the 
Attorney General of corrective actions needed to secure compliance by 
those States with the federally prescribed capital counsel 
requirements. See 42 U.S.C. 14163, 14163c-14163d; 151 Cong. Rec. E2640 
(daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake) (noting 
as precedent for chapter 154 responsibilities of the Attorney General 
that ``[j]ust last year . . . Congress assigned the Attorney General to 
evaluate State . . . capital counsel systems'' under the IPA).
    More fundamentally, there is no sound basis for the claim that the 
Attorney General has a conflict of interest that would preclude him 
from fairly carrying out the functions assigned to him by Congress. The 
criteria the Attorney General will apply in deciding whether a State 
has satisfied the chapter 154 requirements do not control what will be 
deemed constitutionally effective or ineffective assistance of counsel 
in the criminal cases for which the Attorney General is responsible. 
Addressing questions concerning what constitutes constitutionally 
effective assistance calls for an assessment of an attorney's 
performance in a given case, and as already noted, the Attorney General 
will not make such independent assessments in the context of making 
certification decisions under chapter 154, which call instead for an 
evaluation of general competency standards put in place by a State 
mechanism. Hence, there is no basis to conclude that the determinations 
that the Attorney General must make when presented with a request for 
certification of a State mechanism would conflict with the conduct of 
the Attorney General's prosecutorial functions.
    Moreover, the functions performed by the Attorney General in his 
criminal law enforcement and prosecutorial oversight capacities are 
only part of the broader, diverse range of duties he regularly 
performs. The Department, under the Attorney General's supervision, 
administers and carries out programs for the improvement of indigent 
criminal defense systems, both generally and with respect to capital 
cases in particular. See, e.g., Bureau of Justice Assistance, U.S. 
Dep't of Justice, Answering Gideon's Call: Improving Indigent Defense 
Delivery Systems, FY

[[Page 58164]]

2012 Competitive Grant Announcement (April 4, 2012); Bureau of Justice 
Assistance, U.S. Dep't of Justice, Capital Case Litigation Initiative, 
FY 2011 Competitive Grant Announcement (Jan. 11, 2011); Bureau of 
Justice Assistance, U.S. Dep't of Justice, Capital Case Litigation 
Initiative, https://www.bja.gov/ProgramDetails.aspx?Program_ID=52 (last 
visited July 23, 2013) (further information on capital case litigation 
initiative); U.S. Dep't of Justice, The Access to Justice Initiative, 
https://www.justice.gov/atj (last visited July 23, 2013) (home page for 
the Department's Access to Justice Initiative, which seeks to 
``increase access to counsel and legal assistance,'' including by 
advancing ``new statutory, policy, and practice changes that support 
development of quality indigent defense''). The Attorney General leads 
and convenes the Federal Interagency Reentry Council, a government-wide 
effort to improve employment, housing, treatment, and educational 
opportunities for individuals who were previously incarcerated. The 
Department of Justice also handles much of the Federal government's 
civil litigation under the Attorney General's authority, in some cases 
serving as or representing the plaintiff and in others serving as or 
representing the defendant. In addition, the Attorney General oversees 
the Department's Community Relations Service, which provides violence 
prevention and conflict resolution services to State and local 
governments, private organizations, and community groups. These 
examples demonstrate that the Attorney General is accustomed to 
appropriately balancing varied and occasionally competing interests in 
the exercise of his duties. Thus, even if carrying out the 
certification function assigned to him by law did affect the 
Department's criminal enforcement efforts (though it does not), the 
commenters have made no persuasive showing that the Attorney General 
would be unable to fairly evaluate a State's certification request.
    In addition, discharge of the required chapter 154 functions by the 
Attorney General is consistent with Rule 1.7(a)(2) of the American Bar 
Association (``ABA'') Model Rules of Professional Conduct (and 
comparable rules adopted by most State supreme courts), which provides 
in relevant part that ``a lawyer shall not represent a client if . . . 
there is a significant risk that the representation of one or more 
clients will be materially limited by the lawyer's responsibilities to 
another client, a former client or a third person or by a personal 
interest of the lawyer.'' The Attorney General has no responsibilities 
to a client that would materially limit the discharge of the chapter 
154 certification function, because the Attorney General's only 
relevant client is the United States, which through Congress has 
expressly directed the discharge of that function by law. There is also 
no reason to believe that the Attorney General has any responsibility 
to a ``former client'' or ``third person,'' or any ``personal 
interest,'' that would materially impair his representation of the 
United States in the discharge of that function. The Attorney General 
has a professional obligation to abide by the ``client's decisions 
concerning the objectives of representation,'' ABA Model Rule 1.2(a), 
making it difficult to conceive how the Attorney General could have 
such a disqualifying conflict in representing the United States when it 
is the United States that has mandated through its laws that the 
Attorney General carry out the chapter 154 certification function.
    Against this background, there is no force to the claim of some 
commenters that the Attorney General has an inherent conflict of 
interest in carrying out his legal duties under chapter 154--which 
potentially affects defense and judicial review functions in criminal 
cases for which the Attorney General is not responsible--because the 
Attorney General oversees the conduct of prosecutions in Federal 
criminal cases, among other duties. Modification of the rule to 
incorporate the remedial measures proposed by these commenters is 
accordingly not necessary because the underlying assumption of a 
conflict of interest is not well-founded. Indeed, the specific remedy 
suggested by many of these commenters, that the Attorney General 
address the purported conflict of interest by delegating the 
certification function to the Department's Inspector General, would 
itself pose problems. Among others, the task of certifying State 
capital counsel mechanisms falls outside the current duties, 
responsibilities, and expertise of the Inspector General and his staff, 
which focus on fraud, waste, and abuse in the Department of Justice, 
see 5 U.S.C. App. 3 sections 4, 8E.

Relationship to Prior Judicial Interpretation

    Some commenters criticized the rule as inconsistent with the 
judicial construction of chapter 154. However, prior judicial 
interpretation of chapter 154, much of which remains generally 
informative, supports many features of this rule, as this preamble 
documents. To the extent the rule approaches certain matters 
differently from some past judicial decisions, there are reasons for 
the differences.
    One reason judicial decisions could not consistently be followed on 
some matters in this rule is that the decisions were not in accord with 
each other on these matters. For example, as discussed below in 
connection with Sec.  26.22(b) of the rule, some district court 
decisions regarded prior capital litigation experience as necessary to 
qualify for appointment under chapter 154, but appellate precedent and 
other authority permit a more flexible approach that would understand 
capital litigation experience to be relevant and often helpful, but not 
indispensable.
    Textual changes that Congress has made in chapter 154 are another 
reason for differences from prior judicial decisions under chapter 154. 
For example, as explained below in the analysis statement accompanying 
Sec.  26.21 in this rule, chapter 154 originally had separate 
provisions for State systems bifurcating direct and collateral review 
(28 U.S.C. 2261 (2000) (amended 2006)) and State ``unitary review'' 
systems in which collateral claims may be raised in the course of 
direct review (28 U.S.C. 2265 (2000) (amended 2006)). Both sets of 
provisions included language specifying the form that State standards 
establishing the required capital counsel mechanism must take. The 
general provisions in former section 2261(b) required that a State 
establish the mechanism ``by statute, rule of its court of last resort, 
or by another agency authorized by State law.'' The provisions in 
section 2265(a) for unitary review procedures required that a State 
establish the mechanism ``by rule of its court of last resort or by 
statute.'' Both sections said that ``[t]he rule of court or statute 
must provide standards of competency for the appointment of . . . 
counsel.''
    In Ashmus v. Calderon, the court concluded that the State unitary 
review procedure under review in that case did not satisfy chapter 154, 
in part because the State's qualification standards for appointment of 
capital counsel were not set out in a ``rule of court'' in the relevant 
sense. 123 F.3d 1199, 1207-08 (9th Cir. 1997). This particular ground 
for denying chapter 154 certification no longer exists under the 
current formulation of chapter 154. The amendments to chapter 154 
enacted in 2006 replaced the separate provisions for bifurcated and 
unitary review procedures with uniform requirements that apply to all 
State systems and eliminated the former language specifying that the 
relevant standards

[[Page 58165]]

were to be provided by rule of court or statute.
    This rule accordingly does not include a requirement that relevant 
State standards must be adopted by any particular means, 
notwithstanding the judicial application of such a requirement when the 
statutory language was different. While States still must establish 
capital counsel mechanisms that satisfy the chapter 154 requirements to 
be certified, there is no requirement that they do so in any particular 
form, such as only through standards set out in rules of court. So long 
as there has been an authoritative adoption or articulation by a State 
of binding standards, and those standards are not otherwise negated or 
overridden by State policy, the standards are ``established'' for the 
purposes of chapter 154.
    Other differences reflect the change in responsibility for chapter 
154 certification under the 2006 amendments. Prior to those amendments, 
requests to invoke the chapter 154 procedures were presented to Federal 
habeas courts in the context of particular State capital cases they 
were reviewing. Courts in that posture considered both whether the 
State had established a mechanism satisfying chapter 154, and if so, 
whether counsel for the petitioner in the particular case before them 
had been provided in full compliance with that mechanism. Hence, if 
counsel had not been appointed on collateral review in a particular 
case, or if the attorney provided did not satisfy the State's 
competency standards for such appointments, for example, the courts 
could find chapter 154 inapplicable on that basis, regardless of 
whether the State had established a capital counsel mechanism that 
otherwise satisfied the requirements of chapter 154. See, e.g., Tucker 
v. Catoe, 221 F.3d 600, 604-05 (4th Cir. 2000) (``We accordingly 
conclude that a state must not only enact a `mechanism' and standards 
for postconviction review counsel, but those mechanisms and standards 
must in fact be complied with before the state may invoke the time 
limitations of 28 U.S.C. 2263.'').
    The result in such a case is not necessarily different under the 
current formulation of chapter 154, but the route to that result is not 
the same. In entertaining a State's request for chapter 154 
certification, the Attorney General has no individual case before him 
and is not responsible for determining whether a State has complied 
with its mechanism in any particular case. Rather, as discussed above, 
28 U.S.C. 2261(b)(1) assigns to the Attorney General the general 
certification function under chapter 154, which makes him responsible 
for determining whether a mechanism has been established by the State 
and whether the State provides standards of competency. If the State 
mechanism is certified, appointment of counsel pursuant to the 
certified mechanism (absent waiver or retention of counsel or a finding 
of non-indigence) continues to be a further condition for the 
applicability of chapter 154. But whether that has occurred in any 
individual case is, under 28 U.S.C. 2261(b)(2), a matter within the 
province of the Federal habeas court to which the case is presented, 
not the Attorney General.

Section 26.20--Purpose

    A comment on this section as drafted in the proposed rule objected 
that it did not mention the condition for chapter 154's applicability 
appearing in 28 U.S.C. 2261(b)(2). While the section 2261(b)(2) 
requirement was noted in the preamble to the proposed rule, see 76 FR 
at 11706, 11710-11, the objection is well-taken. The final text of 
Sec.  26.20 reflects explicitly that the applicability of the Federal 
habeas corpus review procedures of 28 U.S.C. 2262, 2263, 2264, and 2266 
in a capital case depends on both certification of the State's 
postconviction capital counsel mechanism, as provided in 28 U.S.C. 
2261(b)(1), and appointment of counsel pursuant to the certified 
mechanism (absent waiver or retention of counsel or a finding of non-
indigency), as provided in 28 U.S.C. 2261(b)(2).

Section 26.21--Definitions

Appointment

    Many comments raised the concern that the proposed rule did not 
address the timing of counsel appointment. The concern reflected the 
general importance of the timely availability of counsel in the context 
of a complex and difficult type of litigation and specific issues 
arising from chapter 154's special time limit for Federal habeas 
filing. Compare 28 U.S.C. 2263 (general 180-day time limit under 
chapter 154) with 28 U.S.C. 2244(d) (one-year time limit otherwise 
applicable).
    The Department believes that the concern reflected in these 
comments is well-founded. Chapter 154 involves a quid pro quo 
arrangement under which appointment of counsel for indigents is 
extended to postconviction proceedings in capital cases, and in return, 
subsequent Federal habeas review is carried out with generally more 
limited time frames and scope. See, e.g., H.R. Rep. No. 104-23, at 10 
(1995) (noting the chapter's ``quid pro quo arrangement under which 
states are accorded stronger finality rules on Federal habeas review in 
return for strengthening the right to counsel for indigent capital 
defendants''). The Powell Committee report, from which this essential 
feature of chapter 154 derives, explained that ``[c]apital cases should 
be subject to one complete and fair course of collateral review in the 
state and federal system . . . with the assistance of competent counsel 
for the defendant'' and that ``[t]he belated entry of a lawyer, under 
severe time pressure, does not do enough to ensure fairness.'' 135 
Cong. Rec. 24695 (1989).
    The quid pro quo arrangement of chapter 154 requires provision of 
counsel to capital petitioners in State postconviction proceedings in 
return for Federal habeas review carried out with generally more 
limited time frames and scope. Against this background, not every 
conceivable provision for making postconviction counsel available, 
however belatedly--e.g., only after the deadline for pursuing State 
postconviction proceedings had passed; or only after the expiration of 
section 2263's time limit for Federal habeas filing; or only after such 
delay that the time available for preparing for and pursuing either 
State or Federal postconviction review had been seriously eroded--can 
logically be regarded as providing for appointment of counsel within 
the meaning of chapter 154. Consistent with such considerations, 
judicial decisions under chapter 154 that addressed the matter 
concluded that the State mechanism must provide for timely appointment 
of counsel. See, e.g., Brown v. Puckett, No. 3:01CV197-D, 2003 WL 
21018627, at *3 (N.D. Miss. Mar. 12, 2003) (``The timely appointment of 
counsel at the conclusion of direct review is an essential requirement 
in the opt-in structure. Because the abbreviated 180-day statute of 
limitations begins to run immediately upon the conclusion of direct 
review, time is of the essence. Without a requirement for the timely 
appointment of counsel, the system is not in compliance.''); Ashmus v. 
Calderon, 31 F. Supp. 2d 1175, 1187 (N.D. Cal. 1998) (``The quid pro 
quo would be hollow indeed if compliance by the state was satisfied by 
merely offering and promising to appoint competent counsel with no 
element of timeliness.''); Hill v. Butterworth, 941 F. Supp. 1129, 1147 
(N.D. Fla. 1996) (``[T]he Court holds that any offer of counsel 
pursuant to Section 2261 must be a meaningful offer. That is, counsel 
must be immediately appointed after a

[[Page 58166]]

capital defendant accepts the state's offer of postconviction 
counsel.''), rev'd on other grounds, 147 F.3d 1333 (11th Cir. 1998).
    The supplemental notice of proposed rulemaking accordingly proposed 
specifying more clearly that an adequately functioning mechanism, as 
described in chapter 154, will necessarily incorporate a policy for the 
timely appointment of competent counsel. See 77 FR at 7560-61. Section 
26.21 of the final rule does so by adding a definition of appointment 
that clarifies that it entails ``provision of counsel in a manner that 
is reasonably timely in light of the time limitations for seeking State 
and Federal postconviction review and the time required for developing 
and presenting claims in the postconviction proceedings.'' See American 
Bar Association, ABA Guidelines for the Appointment and Performance of 
Defense Counsel in Death Penalty Cases, at 127 (rev. ed. Feb. 2003), 
available at https://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/deathpenaltyguidelines2003.authcheckdam.pdf (``ABA Guidelines'') 
(increasingly intertwined nature of State and Federal habeas 
proceedings means that ``although the AEDPA deals strictly with cases 
being litigated in federal court, its statute of limitations provision 
creates a de facto statute of limitations for filing a collateral 
review petition in state court'').
    Nevertheless, two comments responding to the supplemental notice 
objected to this change from the proposed rule as inconsistent with the 
current version of chapter 154, which provides that ``[t]here are no 
requirements for certification or for application of this chapter other 
than those expressly stated in this chapter.'' 28 U.S.C. 2265(a)(3). 
However, the definition of appointment in Sec.  26.21 does not add to 
the express requirements for certification. Rather, as explained above, 
it reflects a contextual understanding of chapter 154's express 
requirement of a mechanism for appointment of competent postconviction 
capital counsel, see 28 U.S.C. 2265(a)(1), to encompass some standard 
for affording postconviction representation in a manner that is 
reasonably timely in light of the relevant postconviction review time 
limitations and the time required for developing and presenting claims. 
See OLC Opinion at *8 (``In reasonably construing an ambiguous term in 
a statute that he is charged with administering, the Attorney General 
would not be adding to the requirements for certification . . . [but] 
merely would be implementing an express statutory provision . . . just 
as agency officials regularly do in other contexts'' under Chevron, 
U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844 
(1984).).
    Other features of chapter 154 provide additional textual support 
for the final rule's definition of ``appointment'' and confirm it is 
consistent with the express statutory scheme, including section 
2265(a)(3). Section 2262(a), for instance, provides for an automatic 
stay of execution, by application to a Federal habeas court, upon entry 
of an order appointing counsel. If chapter 154 permitted a State to 
delay appointment of counsel, an execution that is scheduled for a date 
shortly after the denial of a prisoner's direct appeal could occur 
before the prisoner receives the State postconviction counsel and the 
automatic stay that chapter 154 promises. Likewise, chapter 154 
expressly contemplates that States will establish, and the Attorney 
General will review, standards expected to produce competent 
representation by appointed counsel. 28 U.S.C. 2265(a)(1)(A), (C). 
Judgments concerning what competency standards are needed may well vary 
based on expectations about the amount of time an attorney will have to 
perform requisite tasks. The need for counsel to be appointed in a 
reasonably timely fashion, especially in light of the relevant 
statutory deadlines for seeking habeas relief, sets such expectations 
and enables the judgments that the statutory framework requires.
    The two concerned commenters also cite legislative history 
evidence, specifically two floor statements criticizing the Ninth 
Circuit's decision in Spears v. Stewart, 283 F.3d 992 (9th Cir. 2001), 
in support of their objection to the articulation in this rule of 
chapter 154's requirement that appointments be made in a reasonably 
timely fashion. See, e.g., 152 Cong. Rec. S1625 (daily ed. Mar. 2, 
2006) (statement of Sen. Kyl, the sponsor of the amendment, including 
that it ``forbids creation of additional requirements not expressly 
stated in the chapter, as was done in the Spears case''); 151 Cong. 
Rec. E2639 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. 
Flake). However, the legislators' criticism of the Spears decision does 
not support the commenters' objection to the rule's articulation of 
chapter 154's timeliness requirement. Spears addressed an issue 
concerning the timing of appointment of capital collateral counsel in 
two contexts, finding first that a rule adopted by the Arizona Supreme 
Court did adequately provide for timely appointment of counsel, but 
then declining to apply the chapter 154 Federal habeas review 
procedures in that particular case on the ground that counsel was not 
appointed within the time frame called for by the mechanism. Compare 
Spears, 283 F.3d at 1017 (``We conclude that the Arizona statutory 
mechanism for the appointment of postconviction counsel [requiring 
appointment within 15 days of notice that the conviction had become 
final] . . . offered counsel to all indigent capital defendants . . . 
in a timely fashion.''), with id. at 1018-19 (holding that chapter 154 
did not apply ``in Petitioner's case'' because his attorney was 
appointed over a year after the mechanism's deadline). The object of 
the dissatisfaction expressed in the floor statements upon which the 
two commenters rely was neither the positive determination in Spears 
regarding the need for a timing component in a State's mechanism nor 
the adequacy of Arizona's timing provision for purposes of chapter 154, 
but rather the denial to the State of the benefits of chapter 154 in 
that individual case. See 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) 
(statement of Sen. Kyl); 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 
2005) (extension of remarks of Rep. Flake).
    The Attorney General's current role under chapter 154 parallels 
that of the Spears court in making the first of these two 
determinations--whether the mechanism in force in the State adequately 
provides for the reasonably timely appointment of counsel. Nothing in 
the present rule would bar the Attorney General from approving, as the 
Spears court did, a State mechanism that provides for timely provision 
of counsel. Whether and in what circumstances a delay in appointment of 
counsel would affect chapter 154's applicability in an individual case 
may be considered by Federal habeas courts in the exercise of their 
function under 28 U.S.C. 2261(b)(2), and is not a question that the 
statute assigns to the Attorney General.
    In any event, courts ordinarily give floor statements, even 
statements made by the sponsor of a bill or amendment, relatively 
limited weight in analyzing Congress's intent. See, e.g., Garcia v. 
United States, 469 U.S. 70, 76 (1984). This is appropriate in the case 
of the legislation that added section 2265(a)(3) to chapter 154 because 
the commenters principally rely on views expressed by a Senator that 
were not included in the bill's conference report, compare H.R. Rep. 
No. 109-333, at 109-10 (2005) (Conf. Rep.) (making no reference to the 
timing of appointments, and identifying not Spears, but a different 
case that

[[Page 58167]]

involved a different issue as being ``overruled'' by the bill's 
provisions), with 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) 
(statement of Sen. Kyl). See Ctr. for Sci. in the Pub. Interest v. 
Regan, 802 F.2d 518, 523 (D.C. Cir. 1986) (noting that ``the 
contemporaneous remarks of a single legislator, even a sponsor, are not 
controlling in legislative history analysis; rather, those remarks must 
be considered along with other statements and published committee 
reports''). Thus, even if the commenters' reading of the floor 
statements' criticism of Spears were correct, the statements should not 
be treated as controlling or as indicative of congressional intent 
contrary to the rule's clarification of a requirement for reasonably 
timely appointment of counsel.
    With respect to a separate but related issue, one commenter 
suggested that Sec.  26.21's definition of ``appointment'' to encompass 
a timeliness element is unnecessary because courts may alternatively 
address problems under chapter 154 resulting from delay in providing 
postconviction counsel by adjusting the operation of the relevant time 
limits for filing. The commenter cited Rhines v. Weber, 544 U.S. 269 
(2005), and In re Morgan, 50 Cal. 4th 932, 237 P.3d 993 (2010), for 
support.
    As an initial matter, it is unclear to what extent these cited 
cases apply to the issue at hand. Rhines, for example, involved stay-
and-abey procedures that may not be available to petitioners under 
chapter 154, see 28 U.S.C. 2264(b), and Morgan focused on the viability 
of pro se ``shell'' State habeas petitions--a practice that, even if it 
were firmly established and accepted by both State and Federal courts, 
raises significant concerns in the chapter 154 context. As a practical 
matter, for example, not every State petitioner will be in a position 
to understand the necessity for filing such a petition and able to file 
a petition successfully. Moreover, chapter 154 contemplates that in 
exchange for substantial benefits on Federal habeas review, States will 
provide not the opportunity for petitioners to file pro se State habeas 
petitions, but the opportunity for petitioners to file counseled State 
habeas petitions. See Mills v. Anderson, 961 F. Supp. 198, 201 n.4 
(S.D. Ohio 1997) (questioning whether State mechanism that provides for 
appointment of counsel only after filing of pro se petition is 
inadequate under chapter 154). Thus, the relevance of the procedures 
discussed in Rhines and Morgan is uncertain. Even if available in this 
context, they would at most affect what might be thought necessary to 
reasonably assure the timely appointment of counsel. The possible 
existence of such procedures would not undermine the conclusion that 
the ``appointment'' required under chapter 154 must be made in a 
reasonably timely manner, as reflected in the definition in Sec.  
26.21.
    Some commenters approved of the rule's specification of the 
requirement for timely appointment but stated that it should provide a 
more definite period of time (e.g., a specific number of days or weeks) 
within which State mechanisms must appoint counsel. The Department 
believes, however, that States must have significant latitude in 
designing mechanisms for ensuring that competent counsel are appointed, 
see OLC Opinion at *12-13, and this rule therefore does not define 
timeliness in terms of a specific number of days or weeks within which 
counsel is to be provided. Instead, a State need only demonstrate that 
it has established a mechanism for affording counsel in a manner that 
is reasonably timely, in light of the time limits for seeking State and 
Federal collateral review and the effort involved in the investigation, 
research, and filing of effective habeas petitions, which protect a 
petitioner's right to meaningful habeas review.
    Additionally, some commenters urged that the rule should require 
that appointment of postconviction capital counsel be timely in 
relation to the petitioner's conviction, not just in relation to the 
time limits for seeking State and Federal postconviction review and the 
time required for preparing postconviction claims. The rationale 
offered for this proposal was that direct review of the judgment in 
capital cases, occurring between the end of the trial proceedings and 
the commencement of postconviction proceedings, may take a long time, 
and that evidence and records that would be useful to the defense in 
postconviction proceedings may be lost in the meantime. While the 
Department does not question the value of efforts to avoid spoliation 
of evidence, consideration can be given only within the statutory 
framework; to the extent these commenters contemplated requiring that 
postconviction counsel be appointed even before the conclusion of 
direct review, such a mandate would appear to go beyond chapter 154's 
requirements for appointment of counsel ``in State postconviction 
proceedings.'' 28 U.S.C. 2265(a)(1); see id. 2261(b)(1).

Appropriate State Official

    Section 26.21 of the rule, in part, defines an ``appropriate State 
official'' who may request chapter 154 certification under 28 U.S.C. 
2265(a)(1) to mean the State attorney general or the State chief 
executive if the State attorney general does not have responsibility 
for Federal habeas corpus litigation. Some commenters objected to the 
rule's designation of the State attorney general as the appropriate 
official to request chapter 154 certification on grounds of conflict of 
interest, lack of relevant knowledge, interference with State 
discretion, and exceeding statutory authority.
    The comments received provided no persuasive reasons for changing 
the definition of ``appropriate State official'' in Sec.  26.21. First, 
the objection that the State attorney general's litigation interests 
may lead him to make unsound judgments whether his State has satisfied 
chapter 154's requirements conflates the role of applicant and that of 
decision-maker. Under this rule, the State attorney general is 
authorized to request certification, but it will be the U.S. Attorney 
General who makes a wholly independent determination of whether 
certification is warranted. In making this determination, the U.S. 
Attorney General will consider any supporting or contrary information 
or views that any interested entity may choose to submit through the 
public comment procedure set out in Sec.  26.23 of the rule, in 
addition to whatever the State attorney general may offer on the 
question.
    Second, designation of the State attorney general as the 
``appropriate State official'' is consistent with both the original 
language of chapter 154 and the 2006 amendments. Prior to the 2006 
amendments, Federal habeas courts determined whether chapter 154's 
requirements were satisfied, so State attorneys general responsible for 
Federal habeas corpus litigation in capital cases were able to seek 
determinations that the State capital counsel mechanism satisfied the 
chapter 154 requirements as part of their litigation functions. The 
court, not the State attorney general, was the decision-maker on that 
question, and the court's decision was informed by hearing the views of 
others with opposed interests, in addition to those of the State 
attorney general. The transfer of the chapter 154 certification 
function from the Federal courts to the U.S. Attorney General does not 
materially change this framework. The State attorney general is 
authorized to seek certification; the U.S. Attorney General, not the 
State attorney general, is the decision-maker; and the U.S. Attorney 
General will consider any views proffered by others as discussed above.

[[Page 58168]]

    Third, the Attorney General's decisions regarding chapter 154 
certification are subject to de novo review by the D.C. Circuit Court 
of Appeals, as provided in 28 U.S.C. 2265(c), and seeking such review 
would commonly be within the litigation authority of the State attorney 
general, regardless of which official had sought the initial 
determination from the U.S. Attorney General. It would be odd to deem 
the State attorney general an inappropriate official to seek chapter 
154 certification from the U.S. Attorney General in the first instance, 
where the statutes interpose no obstacle to State attorneys general 
seeking the same determination from the D.C. Circuit at a later stage.
    Fourth, the objection regarding lack of relevant knowledge by the 
State attorney general is also unpersuasive. This objection in the 
comments appears to be premised largely on the belief that States 
seeking certification will normally submit with their request a set of 
comprehensive data that demonstrate the operation of the State's 
collateral review system in capital cases, including such matters as 
the amount of awards to defense counsel for litigation expenses in 
particular cases, of which the State attorney general might in some 
cases be unaware. The proposition that the Attorney General must 
conduct such a case-by-case review under chapter 154 is not well-
founded, for reasons discussed earlier in this preamble. Additionally, 
the Department finds it significant that none of the commenters 
identified a person in a State likely to have better knowledge than the 
State attorney general or chief executive concerning matters relevant 
to certification. Thus, even if it is accepted that a State attorney 
general may not have perfectly complete information in every instance, 
there is no basis to believe that there is an alternative official or 
individual better suited to the task. Moreover, if at times there is 
information relevant to the U.S. Attorney General's determination that 
the State attorney general may not have, any interested person is free 
to provide such information through the public comment procedure for 
certification requests set out in Sec.  26.23(b)-(c) in this rule.
    Finally, the objection in the present comments regarding potential 
conflict with State law reflects a misunderstanding of the rule, which 
does not preempt State law. If State law were to prohibit a State 
attorney general from requesting chapter 154 certification, then the 
State attorney general would be barred by State law from making such a 
request. That has no bearing on the formulation of Sec.  26.21, which 
only defines the class of State officials whose request for chapter 154 
certification triggers the requirement under 28 U.S.C. 2265(a)(1) that 
the U.S. Attorney General make a chapter 154 certification decision. 
Moreover, any concern about potential conflict with State law is purely 
speculative. No State submitted comments on this rule stating that it 
has prohibited, wishes to prohibit, or may prohibit the State attorney 
general from requesting chapter 154 certification on behalf of the 
State.

Section 26.22(a)--Statutory Requirements Concerning Appointments

    Section 26.22(a) tracks chapter 154's provisions concerning the 
procedures for appointment of counsel, appearing in 28 U.S.C. 2261(c)-
(d). Some commenters stated that the rule should be modified to provide 
additional definition concerning these procedures, such as specifying 
in greater detail what constitutes a sufficient offer of counsel, or 
what exactly will or will not be deemed a valid waiver of counsel, 
under these provisions.
    The comments received did not provide persuasive reasons for 
addressing additional interpretive issues in this rule. Chapter 154's 
legal directive to the Attorney General regarding rulemaking is that 
the Attorney General ``shall promulgate regulations to implement the 
certification procedure under [section 2265(a)],'' 28 U.S.C. 2265(b). 
Some of the specific matters raised in the comments have been addressed 
by courts in prior decisions relating to chapter 154, but there is no 
requirement that the present rule attempt to provide a comprehensive 
restatement or synthesis of all past judicial decisions under the 
chapter. Though the Attorney General has provided further definition of 
the chapter 154 requirements in Sec.  26.22 of this rule, in the 
interest of affording additional guidance regarding what must be done 
to qualify for certification under chapter 154 and what criteria will 
be applied in making certification decisions, that does not oblige the 
Attorney General to go further and attempt to resolve in this rule 
(even if it were possible) all possible questions that might arise in 
the interpretation and application of chapter 154's requirements.
    It is uncertain whether particular interpretive questions raised by 
the commenters will prove to be significant issues in the context of 
the capital counsel systems of States that actually apply for 
certification hereafter. If they do not, then little will have been 
gained by the Attorney General's attempt to resolve them in advance. If 
they do prove to be significant issues, considering them in the 
concrete setting of State systems whose certification is requested is 
likely to be more conducive to sound resolutions than trying to address 
them in the abstract.

Section 26.22(b)-(c)--General Issues

    Paragraphs (b) and (c) in Sec.  26.22 articulate the requirements 
relating to counsel competency and compensation. Each paragraph 
consists of ``benchmark'' provisions identifying standards that 
presumptively will be considered adequate (Sec.  26.22(b)(1) for 
competency and Sec.  26.22(c)(1) for compensation), followed by general 
provisions for assessing State standards that take other approaches 
(Sec.  26.22(b)(2) for competency and Sec.  26.22(c)(2) for 
compensation).
    The text of the rule published in the notice of proposed rulemaking 
stated without qualification that the Attorney General will approve 
State standards satisfying the benchmark provisions. Many commenters 
expressed the concern that, under the proposed rule, the Attorney 
General could have been required to certify a State's mechanism meeting 
the competence and compensation benchmarks, even if it could be shown 
that the mechanism is not adequate in the context of the State system 
in which it operates.
    The Department continues to believe that State mechanisms that 
incorporate the benchmark standards for competency and compensation 
should be adequate. However, the comments were persuasive that it is 
not possible to predict with certainty that these benchmarks will be 
adequate in the context of every possible State system. For example, it 
is conceivable that a State standard authorizing what normally should 
be sufficient compensation may not in fact make competent lawyers 
available for appointment in postconviction proceedings, considering 
the context of a particular State system and its distinctive market 
conditions for legal services. Cf. Baker v. Corcoran, 220 F.3d 276, 
285-86 (4th Cir. 2000) (considering per-attorney overhead costs and 
effective compensation rates among other factors in finding 
compensation scheme inadequate under chapter 154). The final rule has 
accordingly been modified, as discussed in the supplemental notice of 
proposed rulemaking, to provide that State standards satisfying the 
benchmarks for competency and compensation are presumptively adequate, 
thereby affording latitude to consider State-

[[Page 58169]]

specific circumstances that may establish the contrary--i.e., that 
standards generally expected to be sufficient in most instances are for 
some reason not reasonably likely to lead to the timely provision and 
adequate compensation of competent counsel to habeas petitioners in a 
particular State. 77 FR at 7561.
    Importantly, however, the Department found unpersuasive commenters' 
separate criticism that the proposed rule fails to provide for 
oversight of a State's compliance with a chapter 154 mechanism that it 
has established. As explained earlier in this preamble, the Department 
remains of the view that chapter 154 is correctly read to assign to the 
Federal habeas courts--not to the Attorney General--questions 
concerning whether a State has fully complied in a given case with the 
requirements of its own established mechanism.

Section 26.22(b)(1)(i)--Counsel Competency Standards Based on 18 U.S.C. 
3599

    Section 26.22(b)(1)(i) in the final rule sets forth competency 
standards requiring at least five years of bar admission and three 
years of postconviction litigation experience, or if a State mechanism 
so provides, allowing appointment for good cause in a given case of 
other counsel whose background, knowledge, or experience would 
otherwise enable him or her to properly represent the petitioner. 
Section 26.22(b)(1)(i) is based on the qualification standards Congress 
has adopted in 18 U.S.C. 3599 for appointment of counsel in Federal 
court proceedings in capital cases. The formulation of this provision 
in the final rule to require three years of postconviction litigation 
experience differs from the corresponding provision in the proposed 
rule, which required three years of felony litigation experience, 
without specification of the stage or stages of litigation at which the 
experience was obtained. The reasons for this change are explained 
below.
    In response to the proposed rule, many commenters suggested that 
postconviction litigation experience would be a better measure of 
competency for State postconviction proceedings than general felony 
litigation experience because of the difficult and unique demands that 
postconviction law and procedure place on attorneys who litigate those 
cases. These comments were persuasive.
    In construing chapter 154, some courts have concluded that, given 
the complexity of postconviction law and procedure, a qualifying 
mechanism for the appointment of competent counsel should provide for 
counsel with specialized postconviction litigation experience. See, 
e.g., Colvin-El v. Nuth, No. Civ.A. AW 97-2520, 1998 WL 386403, at *6 
(D. Md. July 6, 1998) (``Given the extraordinarily complex body of law 
and procedure unique to postconviction review, an attorney must, at 
minimum, have some experience in that area before he or she is deemed 
`competent.' ''); see also Jon B. Gould & Lisa Greenman, Report to the 
Committee on Defender Services, Judicial Conference of the United 
States: Update on the Cost and Quality of Defense Representation in 
Federal Death Penalty Cases 88 (Sep. 2010) (noting the view of 
postconviction specialists that there is ``little time available for 
inexperienced counsel to `learn the ropes,' and no safety net if they 
fail''). Several States have also incorporated this guidance into their 
appointment standards. See, e.g., La. Admin. Code tit. 22, 
915(D)(1)(e)(i) (requiring that qualified postconviction lead counsel 
shall ``have at least five years of criminal postconviction litigation 
experience.''); Miss. R. App. P. 22(d)(5) (generally requiring prior 
experience in at least one postconviction proceeding for appointment); 
Mo. Ann. Stat. Sec.  547.370(2)(3) (requiring at least one of two 
appointed counsel to have ``participated as counsel or co-counsel to 
final judgment in at least five postconviction motions involving class 
A felonies in either state or federal trial courts''). The adaptation 
of the section 3599 standard in the final rule accordingly specifies 
three years of postconviction litigation experience, rather than three 
years of any sort of felony litigation experience as in the proposed 
rule.
    The formulation of this benchmark in the final rule to require 
postconviction experience does not take issue, as some commenters 
claimed, with Congress's judgments regarding counsel competency 
standards that are likely to be adequate. Rather, both the proposed and 
final versions reflect necessary adaptation of the standards of 18 
U.S.C. 3599 for use in chapter 154 certification decisions. In defining 
relevant prior litigation experience, 18 U.S.C. 3599(b) and (c) deem 
prior trial experience relevant for trial appointments, and prior 
appellate experience relevant for appointments ``after judgment.'' The 
statute does not provide an experience requirement tailored 
specifically to postconviction proceedings, having no separate 
specification about the experience required for appointments to provide 
representation ``after judgment'' in postconviction proceedings as 
opposed to representation ``after judgment'' on appeal. If section 
3599's standards were transcribed as literally as possible in Sec.  
26.22(b)(1)(i), the rule would state that a State competency standard 
is presumptively adequate if it normally requires three years of 
appellate experience as a precondition for appointment in 
postconviction proceedings. But chapter 154 differs from section 3599 
in that chapter 154 deals exclusively with postconviction proceedings. 
Prior postconviction litigation experience (as opposed to prior 
appellate experience) is more similar in character to the 
postconviction litigation for which an attorney would be appointed 
pursuant to chapter 154, and more likely on the whole to enable the 
attorney to provide effective representation in postconviction 
proceedings. The rule accordingly follows the sensible approach of 
referring to prior postconviction litigation experience in defining an 
experience standard that will presumptively be considered adequate for 
appointments in the postconviction proceedings addressed by chapter 
154.
    The Criminal Justice Act (CJA) guidelines promulgated by the 
Judicial Conference of the United States counsel courts to consider 
postconviction experience when making appointments under 18 U.S.C. 
3599. See 7A Guide to [Federal] Judiciary Policy 620.50 (last rev. 
2011) (``CJA Guidelines''), available at https://www.uscourts.gov.FederalCourts/AppointmentOfCounsel/CJAGuidelinesForms/GuideToJudiciaryPolicyVolume7.aspx. To be sure, the CJA Guidelines are 
not absolute requirements even in Federal habeas matters; the 
guidelines are phrased in permissive terms and elaborate in part on 18 
U.S.C. 3005, see CJA Guidelines 620.10.10(a), 620.30, which concern 
appointment of counsel for trial representation in Federal capital 
cases and does not apply to appointments for collateral proceedings in 
State capital cases. Compare 18 U.S.C. 3005 with 18 U.S.C. 3599. 
However, the Department does agree that the CJA Guidelines may at times 
help to inform determinations as to appropriate standards for 
appointment of counsel, and so understood, the Department is ultimately 
convinced that the guidelines' advice to consider postconviction 
experience is sound. The final rule therefore avoids the anomaly that 
would result from an overly formalistic adaptation of 18 U.S.C. 3599 
and instead carries out the adaptation in a manner in which the prior 
litigation

[[Page 58170]]

experience requirement is more finely attuned to the nature of the 
proceedings--i.e., postconviction proceedings--in which appointments 
are to be made.
    The Department was not convinced, however, by commenters who 
asserted that this benchmark is deficient (or the other counsel 
competency provisions of the rule are deficient) because it does not 
require appointed counsel to have prior experience in capital 
postconviction proceedings, or at a minimum, some prior capital 
litigation experience generally. While prior capital litigation 
experience is frequently a relevant and valuable asset for an attorney 
assigned to handle postconviction matters, see Wright v. Angelone, 944 
F. Supp. 460, 467 (E.D. Va. 1996), and is also a factor that the CJA 
Guidelines say courts should consider in Federal capital cases, the 
Department was ultimately unpersuaded that prior capital litigation 
experience must be required categorically as a precondition of 
competence under chapter 154. When setting competency requirements for 
appointed counsel in the IPA, see infra, Congress has not mandated that 
appointed attorneys invariably have such experience. 42 U.S.C. 
14163(e). Similarly, courts and others have recognized that prior 
capital case experience should not be regarded as a sine qua non of an 
appropriate competency standard for postconviction counsel. See, e.g., 
Spears, 283 F.3d at 1013 (``Nothing in [chapter 154] or in logic 
requires that a lawyer must have capital experience to be 
competent.''); ABA Guidelines, at 37 & n. 109 (noting that ``[s]uperior 
postconviction death penalty defense representation has often been 
provided by members of the private bar who did not have prior 
experience in the field'' and stating that such counsel should be 
appointed if the client will receive high quality legal 
representation).
    Next, and more broadly, some commenters contended that any 
competency measure based solely on prior experience will necessarily be 
insufficient under chapter 154 and criticized the Section 
26.22(b)(1)(i) benchmark (and Sec.  26.22(b)(2)) on that basis. Many of 
these comments urged the view that a State system that relies on prior 
experience must also incorporate procedures for monitoring counsel 
performance following appointment and for removal of poorly performing 
attorneys. The rule remains unchanged in response to these comments. 18 
U.S.C. 3599 reflects a Congressional judgment that sufficiently robust 
experience requirements alone can be sufficient. Further, when Congress 
amended chapter 154 in 2006, it could have required all State 
mechanisms to adopt monitoring and removal provisions similar to those 
it required in the IPA in 2004, see 42 U.S.C. 14163(e)(2)(E), if it 
viewed such provisions as indispensable, but Congress did not do so. 
Thus, monitoring or removal requirements are not included in the rule's 
benchmark based on 18 U.S.C. 3599. But see Sec.  26.22(b)(1)(ii) and 
discussion infra. However, their omission should not displace or affect 
the existence and operation of more generally applicable monitoring or 
removal procedures (e.g., disbarment) that a State may have in place, 
nor should it in any way discourage States from choosing to adopt 
monitoring and removal provisions as a discretionary matter.
    One of the comments argued that the standards applicable under 
section 3599 to Federal habeas counsel should be considered inadequate 
for appointment of counsel in State collateral proceedings, on the 
ground that Federal habeas counsel has the benefit of the antecedent 
work of State collateral counsel in developing and presenting claims, 
and accordingly need lesser skills. However, the standards of section 
3599 apply to Federal habeas counsel regardless of what prior 
representation or process has or has not been provided in State 
proceedings. Also, the same standards apply under section 3599 to 
counsel in Federal court collateral proceedings in Federal capital 
cases which, like State court collateral proceedings in State capital 
cases, are normally preceded only by trial and appeal.
    Some commenters also objected to the exception language in the 
section 3599-based benchmark that allows appointment of counsel not 
meeting its specific litigation experience requirement in some 
circumstances. This exception appropriates the standard of 18 U.S.C. 
3599(d), which allows courts, for good cause, to appoint other counsel 
whose background, knowledge, or experience would otherwise enable them 
to properly represent the petitioner, with due consideration of the 
seriousness of the penalty (i.e., capital punishment) and the nature of 
the litigation. We expect that allowing this type of departure will not 
unduly negate or undermine the specific experience requirement of this 
aspect of the rule, since its formulation limits its applicability to 
exceptional cases. It requires good cause for the court to appoint 
counsel other than those satisfying the specific experience 
requirement, and requires the court to verify that such counsel have 
other characteristics qualifying them to meet the demands of 
postconviction capital punishment litigation. In the rule, as in 
section 3599, the exception recognizes that insisting on a rigid 
application of a defined experience requirement could debar attorneys 
who are well-qualified on other grounds to represent capital 
petitioners. The comments provided no persuasive reason to deny this 
latitude in State court collateral proceedings in capital cases, which 
Congress has deemed appropriate for Federal court collateral 
proceedings (and other Federal court proceedings) in capital cases. See 
18 U.S.C. 3599(d); cf. Ashmus, 123 F.3d at 1208 (recognizing that 
``habeas corpus law is complex and has many procedural pitfalls'' but 
concluding that it is not necessary under chapter 154 that every lawyer 
have postconviction experience), rev'd on other grounds, 523 U.S. 740 
(1998).
    Though the Department therefore believes there is good reason to 
retain the availability of the exception to Sec.  26.22(b)(1)(i)'s 
years of experience requirement that is drawn from 18 U.S.C. 3599(d), 
the rule is permissive, not mandatory, on this point. If a State 
decides to omit the exception in its mechanism, such that appointed 
attorneys will invariably need to have been admitted to the bar for 
five years and have three years of postconviction litigation 
experience, that omission will not result in a determination that it 
has failed to satisfy the Sec.  26.22(b)(1)(i) benchmark.
    Finally, some commenters objected to this revision of the benchmark 
as unduly limiting State discretion regarding the formulation of their 
counsel competency standards. However, use of this particular standard 
as a benchmark does not convey or depend on a judgment that other 
approaches States may choose to adopt are necessarily illegitimate or 
inadequate for purposes of chapter 154. Rather, other standards may be 
presented for the Attorney General's consideration under Sec.  
26.22(b)(2), and they will be approved if they otherwise reasonably 
assure a level of proficiency appropriate for State postconviction 
litigation in capital cases.

Section 26.22(b)(1)(ii)--Counsel Competency Standards Based on the 
Innocence Protection Act

    Section 26.22(b)(1)(ii) identifies the establishment of 
qualification standards for appointment in conformity with the 
procedures of the IPA as another potential means of satisfying chapter 
154.

[[Page 58171]]

    The text of the rule published in the notice of proposed rulemaking 
framed the benchmark in terms of ``meeting qualification standards 
established in conformity with 42 U.S.C. 14163(e)(1) [and] (2)(A).'' 
These provisions concern the nature and composition of capital counsel 
appointment or selection entities, 42 U.S.C. 14163(e)(1), and provide 
that 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).
    Numerous comments on the proposed rule related to how many of the 
IPA provisions should be imported into the rule's benchmark. Commenters 
noted that the benchmark as formulated in the proposed rule did not 
capture the full range of IPA provisions bearing on the qualifications 
counsel must meet to be eligible for appointment. In particular, 
subparagraphs (e)(2)(B), (D), and (E) in 42 U.S.C. 14163 require 
maintenance of a roster of qualified attorneys, specialized training 
programs for attorneys providing capital case representation, 
monitoring the performance of attorneys who are appointed and their 
attendance at training programs, and removal from the roster of 
attorneys who fail to deliver effective representation, engage in 
unethical conduct, or do not participate in required training. These 
provisions are integral elements of the IPA qualification standards for 
appointments, because counsel who fail to measure up under these 
requirements become ineligible for subsequent appointments.
    These comments were persuasive that the IPA-based provision in the 
proposed rule did not fully reflect the IPA system relating to 
qualifications for appointment because of the omission of reference to 
subparagraphs (e)(2)(B), (D), and (E) in the statute. The omission has 
been corrected in Sec.  26.22(b)(1)(ii) in the final rule.
    The supplemental notice of proposed rulemaking included this change 
in the IPA-based benchmark. See 77 FR at 7560. Some of the commenters 
responding to the supplemental notice questioned the continued omission 
of certain other IPA provisions, particularly the IPA requirements 
relating to appointment of two counsel, and the IPA requirements 
concerning compensation of counsel. See 42 U.S.C. 14163(e)(2)(C), (F). 
Counsel compensation is addressed in a different part of this rule, 
which includes benchmarks similar to the IPA provisions. See Sec.  
26.22(c)(1)(ii) and (iv) in the final rule and the related discussion 
below.
    Regarding the number of counsel, chapter 154 does not require 
States to appoint more than one attorney (as part of a defense team) 
for postconviction representation. Rather, the applicable statute 
frames the potential appointment of multiple postconviction counsel as 
a discretionary matter. See 28 U.S.C. 2261(c)(1) (State capital counsel 
mechanism must provide for court order ``appointing one or more 
counsels to represent the prisoner''). The Department believes there is 
no sound basis to eliminate the discretion chapter 154 contemplates by 
its own terms through a rule that forecloses certification of State 
mechanisms that provide for the appointment of only one attorney.
    Furthermore, the IPA itself requires appointment of two counsel, 
with some exception, in the context of counsel standards that do not 
differentiate between different stages in the litigation of capital 
cases and that are principally concerned with the trial stage. See 42 
U.S.C. 14163(c)-(d) (providing that IPA funding is to be used for 
effective systems for providing competent legal representation at all 
stages, with general requirement that at least 75% be used in relation 
to trial representation and at most 25% in relation to appellate and 
postconviction representation). In adapting the IPA standards to the 
context of chapter 154, which concerns only representation in 
postconviction proceedings, some flexibility on the question whether 
multiple counsel should be required is appropriate and accords with 
relevant congressional judgments in related contexts. As noted, chapter 
154 itself frames the appointment of multiple postconviction counsel as 
a discretionary matter. 28 U.S.C. 2261(c)(1). Likewise, in relation to 
Federal capital cases and Federal habeas corpus review of State capital 
cases, Congress has required appointment of two counsel at trial but 
has made appointment of more than one counsel at later stages a 
discretionary matter. Compare 18 U.S.C. 3005 (court to ``assign 2 . . . 
counsel'' for trial representation) with 18 U.S.C. 3599(a) (requiring 
in provisions applicable at later stages ``appointment of one or more 
attorneys''). The rule takes a similar approach when adapting the IPA 
standards in the chapter 154 context by permitting, but not requiring, 
State mechanisms to provide for appointment of two attorneys to 
represent a capital petitioner on collateral review.
    Additionally, Sec.  26.22(b) in the rule articulates the statutory 
requirement that a State provide for the appointment of competent 
counsel in State postconviction proceedings and provide standards of 
competency for the appointment of such counsel. 28 U.S.C. 
2265(a)(1)(A), (C). As discussed above, this means that States must 
have qualification standards that counsel must meet to be eligible for 
appointment and that the Attorney General finds adequate. The IPA 
provisions included in Sec.  26.22(b)(1)(ii) in the final rule fit 
within this framework because they are integral to the IPA's 
specification of qualifications that counsel must meet to be eligible 
for initial or subsequent appointments. The same would not be true of 
specifications concerning the number of counsel to be appointed.
    As to a separate issue, another comment criticized this benchmark 
on the ground that it does not prescribe definite qualification 
standards for appointment of counsel, but rather endorses any standards 
adopted in conformity with the IPA procedures. However, chapter 154 
directs the Attorney General to determine whether the State provides 
standards of competency for appointment of competent counsel in State 
capital collateral proceedings, and whether the State's mechanism 
incorporating such standards will reasonably assure the appointment of 
competent counsel. It does not require the Attorney General to specify 
directly the required content of such standards. The corresponding 
provisions of the IPA reflect a judgment by Congress that qualification 
standards adopted in conformity with the IPA procedures will be 
adequate. This judgment is appropriately adopted in defining one of the 
means by which States may seek to satisfy the requirements of chapter 
154.

Section 26.22(b)(2)--Other Counsel Competency Standards

    Section 26.22(b)(2) in the rule provides that the Attorney General 
may find other competency standards for the appointment of counsel 
adequate if they reasonably assure a level of proficiency appropriate 
for State postconviction litigation in capital cases. Some commenters 
criticized this provision as overly indefinite and urged that the rule 
should provide for assessment of State capital counsel competency 
standards only under clearly defined criteria.
    Many of these critical comments are premised at least partly on the 
view that the Attorney General has a conflict of interest under chapter 
154. The commenters viewed this alleged conflict as exacerbated by 
Sec.  26.22(b)(2) and urged that the rule eliminate or drastically 
limit any opportunity for the Attorney General to exercise judgment

[[Page 58172]]

or discretion in evaluating the adequacy of a State capital counsel 
mechanism. The Department rejects the premise that the Attorney General 
has a conflict, for reasons discussed above, and therefore finds the 
comments predicated on that view unpersuasive.
    Also, as explained earlier, the Department believes States should 
retain some significant discretion to formulate and apply counsel 
competency standards, and Sec.  26.22(b)(2) as drafted appropriately 
preserves that discretion. There are any number of ways in which a 
State might adopt measures of experience, knowledge, skills, training, 
education, or combinations of those considerations in devising a 
standard that would reasonably assure the appointment of counsel who 
are competent to conduct postconviction litigation in capital 
proceedings. Revising Sec.  26.22(b)(2) to provide only very specific, 
one-size-fits-all criteria is accordingly impractical and would risk 
foreclosing innovative efforts by States to devise robust standards, 
even standards that would unquestionably result in the timely 
appointment of competent counsel.
    Furthermore, before Congress reassigned the certification function 
from the Federal courts to the Attorney General by the 2006 amendments 
to chapter 154, courts did not assess the adequacy of State counsel 
competency standards constrained by rigid, pre-announced criteria; they 
were guided instead by the terms of chapter 154 itself and the facts in 
a particular case. See, e.g., Spears, 283 F.3d at 1012-15; Ashmus, 123 
F.3d at 1208; Hill, 941 F. Supp. at 1142-43. The 2006 amendments 
changed the decision-maker for purposes of making judgments about the 
overall adequacy of State systems under chapter 154, but the amendments 
do not suggest that the Attorney General's discretion to evaluate the 
adequacy of State competency standards must be constrained by a one-
size-fits-all approach. Had Congress questioned the Attorney General's 
ability to exercise discretion soundly or believed that more specific 
guidance was necessary, it could have amended the statutory scheme to 
specify more detailed requirements that State mechanisms must meet when 
it transferred the certification function to the Attorney General--but 
Congress did not do so.
    This is not to say, as some comments contend, that Sec.  
26.22(b)(2) affords a State unbounded discretion to establish any sort 
of competency standards and still obtain certification of its mechanism 
under chapter 154. The notice and supplemental notice of proposed 
rulemaking described the two approaches now reflected in paragraph 
(b)(1) of the rule as benchmarks, and they function precisely in that 
manner. That is, the criteria in paragraph (b)(1) do not simply 
identify two competency standards that will entitle a State that adopts 
them to a presumption of adequacy; they also serve as a point of 
reference in judging the adequacy of other counsel qualification 
standards that States may establish and offer for certification by the 
Attorney General. A State mechanism that does not incorporate the 
benchmark standards will naturally require closer examination by the 
Attorney General to ensure that it satisfies the statutory standards, 
and while it is possible to conceive of a variety of alternative 
competency measures that would satisfy chapter 154's requirements, 
State competency standards that appear likely to result in 
significantly lower levels of proficiency compared to the benchmark 
levels risk being found inadequate under chapter 154. For clarity, the 
text of the proposed rule has been revised to reflect this 
understanding, namely, that the paragraph (b)(1) standards function as 
benchmarks and are relevant to the Attorney General's assessment of 
alternative competency standards for which certification would be 
predicated on Sec.  26.22(b)(2).
    This explanation also responds to another comment, which complains 
that the provision appearing in the final rule as Sec.  26.22(b)(2) is 
overly restrictive, on the ground that it limits the possibility of 
approval of State competency standards to situations in which they are 
``functionally identical to or more stringent than'' the particular 
benchmark standards described in Sec.  26.22(b)(1). This comment 
reflects a misunderstanding of the rule. The analysis statement in the 
proposed rule noted in relation to the benchmarks that 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, see 76 FR at 11709, 
and a statement to the same effect appears in the section-by-section 
analysis for this final rule. However, it is not similarity in form to 
the presumptively adequate standards that section (b)(2) contemplates, 
and the standards need not function in an identical matter. Rather, 
Sec.  26.22(b)(2) contemplates a close equivalence in terms of the 
expectation that a proffered mechanism will reasonably assure an 
appropriate level of proficiency in appointed counsel. As the analysis 
statement explained and this preamble repeats, Congress intended the 
States to have significant discretion regarding competency standards, 
within reasonable bounds, and the particular benchmarks identified in 
the rule do not exhaust the means by which States may satisfy chapter 
154's requirements.

Section 26.22(c)--Compensation of Counsel

    Section 26.22(c)(1)(i) refers to the compensation of counsel 
pursuant to 18 U.S.C. 3599 in Federal habeas corpus proceedings 
reviewing State capital cases. The Department received no comments that 
were specifically critical of this standard, which remains unchanged in 
the final rule.
    The compensation standards for appointed capital counsel in State 
collateral proceedings described in Sec.  26.22(c)(1)(ii) and (iv) in 
the rule involve compensation comparable to that of retained counsel 
meeting sufficient competency standards or attorneys representing the 
State in such collateral proceedings. Some comments were critical of 
these benchmarks as setting an inadequate level of compensation. 
However, as explained in the accompanying analysis statement for the 
rule, these parts of the rule are similar to legislative judgments in 
the IPA endorsing compensation of capital defense counsel at market 
rates or at a level commensurate with that of prosecutors. 42 U.S.C. 
14163(e)(2)(F)(ii)(I); see also ABA Guidelines Sec.  9.1(B)(2), at 49 
(same). The comments provided no persuasive reason to reject this 
legislative judgment in the context of chapter 154, or to believe that 
compensating appointed capital defense counsel at higher levels than 
competent retained counsel or counsel representing the State in the 
same proceedings will generally be necessary to induce a sufficient 
number of competent attorneys to provide representation.
    Section 26.22(c)(1)(iii) in the rule refers to compensation 
comparable to the compensation of appointed counsel in State appellate 
or trial proceedings in capital cases. The accompanying explanation in 
the analysis statement for this rule explains that the compensation 
afforded for trial and appellate representation is likely to be 
sufficient to secure the availability of an adequate pool of competent 
attorneys to provide postconviction representation, because that level 
of compensation is necessarily sufficient to ensure an adequate number 
of attorneys are available to provide representation in trials and 
appeals, where representation by counsel is constitutionally required.

[[Page 58173]]

    Some commenters criticized this provision as overly permissive on 
the ground that trial and appellate counsel may be underpaid and that 
such counsel are sometimes found to have provided constitutionally 
ineffective assistance. However, that is not an occurrence that can be 
infallibly guarded against by any level of compensation at any stage of 
criminal proceedings. Moreover, the proposed rule has been modified to 
afford the Attorney General latitude to consider any unusual 
circumstances presented by a particular State system that indicate that 
the level of compensation called for in this benchmark is unlikely to 
function as expected. It is conceivable in the context of a particular 
State and its distinctive market conditions for legal services, for 
example, that what normally should be sufficient compensation may not 
in fact be reasonably likely to make competent lawyers available for 
timely provision to capital petitioners in State postconviction 
proceedings. Cf. Baker, 220 F.3d at 285-86 (considering per-attorney 
overhead costs and effective compensation rates among other factors in 
finding compensation scheme inadequate under chapter 154).
    Nevertheless, the Attorney General does not exercise limitless 
discretion to pass judgment on whether State compensation 
authorizations are sufficiently generous under chapter 154, which 
provides in relevant part simply that the Attorney General is to 
determine ``whether the State has established a mechanism for the 
appointment [and] compensation . . . of competent counsel.'' 28 U.S.C. 
2265(a)(1)(A). The formulation of the rule on this point reads the 
statutory scheme to allow the Attorney General to review the adequacy 
of State compensation provisions in the interest of promoting 
sufficient financial incentives to secure the appointment of competent 
counsel in sufficient numbers to timely provide representation to 
capital petitioners in State collateral proceedings. The Attorney 
General will consider any available relevant information, including the 
effective hourly rate for appointed attorneys, in evaluating a 
mechanism's compensation standards. But the comments critical of the 
Sec.  26.22(c)(1)(iii) benchmark, which raised concerns with funding 
for appointment of counsel in particular cases or in particular States, 
were not sufficiently persuasive that compensation that adequately 
motivates counsel to accept appointments for the trial and appeal of 
capital cases (in which they are held to provision of constitutionally 
effective assistance) will generally be unlikely to provide sufficient 
incentives for competent counsel to provide representation in State 
collateral proceedings satisfying the standards of chapter 154.
    Section 26.22(c)(2) in the rule allows approval of other approaches 
to compensation, but ``only if the State mechanism is otherwise 
reasonably designed to ensure the availability for appointment of 
[competent] counsel.'' Some commenters criticized this provision as 
vague and urged that the rule be modified so that chapter 154 
certification could be granted only if a State's counsel compensation 
provisions satisfy definite criteria stated in the rule.
    As with the corresponding comments on Sec.  26.22(b)(2), these 
comments in part reflected an assumption that the Attorney General has 
a conflict of interest in carrying out his legal duties under chapter 
154, and the response is much the same. The underlying assumption of a 
conflict of interest is not well-founded, for reasons discussed above. 
Additionally, Sec.  26.22(c)(2) is consistent with the Department's 
recognition that a State should have significant latitude in designing 
a capital counsel mechanism that (among other things) are tailored to 
the State's unique characteristics and market conditions. As already 
noted, the provision affords States appropriate discretion to set 
alternative levels of compensation that will reasonably assure the 
timely appointment of competent counsel but that might otherwise be 
foreclosed by an overly specific ex ante requirement. At the same time, 
as explained above in connection with Sec.  26.22(b)(2), a State's 
latitude to consider alternative compensation standards, and the 
Attorney General's assessment of any such standards, is not unbounded. 
The rule identifies four benchmarks that will continue to guide the 
Attorney General's evaluation of other proposed standards--as the text 
of the proposed rule has similarly been revised to clarify.

Section 26.22(d)--Reasonable Litigation Expenses

    Section 26.22(d) in the rule reflects the requirement to provide 
for payment of reasonable litigation expenses. Some commenters 
criticized this provision as not sufficiently specific regarding the 
types of expenses that must be defrayed and the means of evaluating 
what expenditures are reasonable. They accordingly urged more definite 
specification concerning these matters in the rule, such as explicitly 
requiring payment for investigators, mitigation specialists, mental 
health and forensic science experts, and support personnel, and 
providing standards for evaluating the reasonableness of compensation 
for persons in each category.
    The comments raise an important issue for consideration. The 
Department recognizes that investigators, mental health and forensic 
experts, and other support personnel often contribute critical services 
in capital postconviction cases. The Department agrees that payment of 
such individuals, among other expenses that may arise in the context of 
a particular case, are litigation expenses that should merit 
reimbursement if reasonable, and the text of Sec.  26.22(d) has been 
modified in the final rule to clarify this point. See ABA Guidelines, 
at 128 (``[C]ollateral counsel cannot rely on the previously compiled 
record but must conduct a thorough, independent investigation in 
accordance with Guideline 10.7 . . . [including] discover[ing] 
mitigation that was not presented previously, [and] identify[ing] 
mental-health claims which potentially reach beyond sentencing issues 
to fundamental questions of competency and mental-state defenses.''); 
Rompilla v. Beard, 545 U.S. 374, 387 (2005) (```[W]e long have referred 
[to ABA Standards] as guides to determining what is reasonable.''' 
(quoting Wiggins v. Smith, 539 U.S. 510, 524 (2003) (internal quotation 
marks omitted)).
    However, the language of section 2265 does not suggest that the 
Attorney General must enumerate the universe of litigation expenses 
that merit reimbursement. Rather, the relevant statutory directive to 
the Attorney General is to determine whether the State has established 
a mechanism for the ``payment of reasonable litigation expenses.'' 28 
U.S.C. 2265(a)(1)(A). The comments on this issue did not persuasively 
establish that a State should be denied chapter 154 certification if 
its mechanism requires the payment of reasonable litigation expenses in 
terms similar to chapter 154 itself, or at some other level of 
generality less specific than that urged by the commenters. See Spears, 
283 F.3d at 1016 (``[Chapter 154] requires only that the state 
mechanism provide for the payment of reasonable litigation expenses. 
The federal statute thus assumes that a state can assess reasonableness 
as part of its process.''); see also Gould & Greenman, supra, at 31-32, 
78, 122 (2010) (provision for Federal court proceedings in capital 
cases, which refers generally to fees and expenses for investigative, 
expert, and other reasonably necessary services,

[[Page 58174]]

states that payment for these purposes shall not exceed $7,500 unless 
approved for a higher amount by the circuit chief judge or delegee--but 
the median reimbursable cost that Federal courts approved in capital 
cases between 1998 and 2004 was $83,000).
    Importantly, though, as with other requirements under chapter 154, 
satisfaction of the requirement regarding payment of reasonable 
litigation expenses requires that States have standards in force that 
so provide. The Attorney General will consider all relevant aspects of 
State standards in ascertaining whether the statutory requirements have 
been satisfied. Thus, as Sec.  26.22(d) states, a general provision 
requiring payment of reasonable litigation expenses would not be 
sufficient if negated by rigid payment caps with no authorized means 
for payment of necessary expenses above such limits, and the Attorney 
General would similarly consider whether such a provision is negated by 
State policy that precludes payment for certain categories of expenses 
that may be reasonably necessary. Moreover, as with other requirements, 
the Attorney General is not dependent on the State's representations, 
and any interested person or entity believing that State standards 
overall do not provide for payment of reasonable litigation expenses is 
free to bring relevant information to the Attorney General's attention 
through the comment procedure set out in Sec.  26.23 in the rule.
    Comments responding to the supplemental notice of proposed 
rulemaking suggested that satisfaction of Sec.  26.22(d) should only be 
considered presumptively adequate for purposes of chapter 154, 
paralleling the ``presumptively'' qualifier applicable to the benchmark 
provisions relating to counsel competency and compensation, which 
appear in Sec.  26.22(b)(1) and (c)(1) in the final rule. The 
``presumptively'' qualifier is neither necessary nor appropriate here 
because Sec.  26.22(d) incorporates no benchmark provisions. It 
articulates the requirement relating to payment of litigation expenses 
under chapter 154, and States that have established mechanisms that 
meet this requirement have done what chapter 154 requires in this 
connection. Its proper counterpart is not the benchmark provisions in 
Sec.  26.22(b)(1) and (c)(1), but the general articulations of the 
chapter's requirements relating to counsel competency and compensation 
in Sec.  26.22(b)(2) and (c)(2), which similarly do not need or have a 
``presumptively'' qualifier.

Section 26.23(a)-(c)--Certification Procedure

    These provisions in the rule specify the procedure for the Attorney 
General to receive requests for chapter 154 certification, obtain 
public comment on the requests through Internet posting and Federal 
Register publication, and make and announce the certification decision.
    Some commenters objected that the public notice and comment 
procedure of the rule is inadequate and that the Attorney General must 
engage in additional fact-finding processes. These objections are 
premised on an incorrect understanding of the nature and scope of the 
Attorney General's certification determination, as explained earlier in 
this preamble. The Attorney General's decision to certify an 
established State mechanism under chapter 154 need not be supported by 
a data-intensive examination of the State's record of compliance with 
the established mechanism in all or some significant subset of 
postconviction cases; for instance, certification should not be 
foreclosed for a State that cannot submit the information the 
commenters identify because it has established new standards that 
satisfy the statutory requirements but for which there is no pre-
existing record of compliance. The comments provided no persuasive 
reason to believe that the rule's procedure, under which the Attorney 
General will publish a State's request for certification and invite 
interested parties and the State seeking certification to be heard via 
written submissions during one or more public comment periods, will be 
inadequate to provide the information needed for the determinations 
that the Attorney General actually must make under chapter 154. 
Moreover, the Attorney General's certifications under chapter 154 are 
orders rather than rules for purposes of the Administrative Procedure 
Act (APA). They are accordingly not subject to the APA's rulemaking 
provisions, see 5 U.S.C. 553, much less to the APA's requirements for 
rulemaking or adjudication required to be made or determined on the 
record after opportunity for an agency hearing, see 5 U.S.C. 553(c), 
554, 556, 557.
    The Department does not believe, as some commenters urged, that it 
is necessary to specify detailed information concerning State capital 
collateral review systems that States must include in their requests 
for chapter 154 certification. For the reasons already given, these 
comments were similarly based on an incorrect understanding of the 
nature and scope of the Attorney General's certification determination. 
Chapter 154 itself and this rule explain what States must do to qualify 
for chapter 154 certification. Under the procedures of Sec.  26.23, 
States will be free to present any and all information they consider 
relevant or useful to explain how the mechanism for which they seek 
certification satisfies these requirements. Likewise, through the 
public comment procedure of the rule, any other interested person or 
entity will be free to submit any information it may wish in support 
of, or in opposition to, the State's request--including information 
that the mechanism submitted for certification has not been established 
because its standards are actually negated or overridden by contrary 
State policy. Further, the proposed rule has been revised to make clear 
that the Attorney General may permit more than one period for comment 
to allow the requesting State or any interested parties further 
opportunity for submission of views or information. The comments 
provided no persuasive reason for an across-the-board imposition of 
more definite informational requirements beyond that.
    Comments also proposed that the rule require the Attorney General 
to give personal notice to certain entities concerning a State's 
submission of a request for chapter 154 certification, such as capital 
defense entities in the requesting State. In any particular State, 
there may be a large number of organizations and individuals who are 
involved in capital defense work or who would be interested in a 
State's request for chapter 154 certification for other reasons. It is 
not feasible for the Attorney General to attempt to identify and 
personally notify all of them. Nor should the Attorney General be in 
the position of having to pick and choose, identifying certain persons 
or organizations as sufficiently interested or important to receive 
personal notice, when others will not receive such notice. Such 
personal notice requirements, in any event, are unnecessary, because 
the State's request will be made publicly available on the Internet and 
in the Federal Register as provided in Sec.  26.23(b).
    Section 26.23(c) states that if certification is granted, the 
certification will be published in the Federal Register. Some 
commenters urged that denials of certification also be published in the 
Federal Register. However, the granting of chapter 154 certification by 
the Attorney General changes the Federal habeas corpus review 
procedures applicable in relation to capital cases in the State, so 
there is a

[[Page 58175]]

clear interest in making it indisputable and publicly known that 
certification has been granted, for which Federal Register publication 
is a convenient and sufficient means. The reasons for publicizing a 
denial of certification through official publication are less 
compelling because its legal effect is just to perpetuate the status 
quo. Publication of a denial of certification might alternatively serve 
the purpose of providing the predicate for an appeal of the Attorney 
General's decision to the D.C. Circuit Court of Appeals. However, 
review by the D.C. Circuit would be pursuant to chapter 158 of title 
28, see 28 U.S.C. 2265(c), which provides that ``[o]n the entry of a 
final order reviewable under this chapter, the agency shall promptly 
give notice thereof by service or publication in accordance with its 
rules.'' 28 U.S.C. 2344. So the Attorney General has the option of 
giving notice by service to the State official who requested 
certification regarding the denial of the certification, and is not 
legally required to publish the denial. Considering the foregoing, the 
comments do not persuasively establish that the rule should be changed 
to require uniformly that the Attorney General publish denials of 
certification in the Federal Register.

Section 26.23(d)--Post-Certification Occurrences

    Section 26.23(d) in the rule addresses the effect of changes or 
alleged changes in a State capital counsel mechanism following 
certification by the Attorney General.
    One commenter urged that more of the accompanying explanation 
regarding this provision in the analysis statement for the proposed 
rule be contained in the rule itself. The relevant portion of the 
analysis statement, 76 FR at 11710-11, in part noted that if a State 
abolishes its capital counsel mechanism following certification by the 
Attorney General, then 28 U.S.C. 2261(b)(2)'s requirement of 
appointment of counsel pursuant to the certified mechanism as a 
condition of chapter 154's applicability cannot thereafter be 
satisfied, reflecting the obvious point that counsel cannot be 
appointed pursuant to something that no longer exists. The analysis 
statement further noted that capital habeas petitioners may present 
claims to Federal habeas courts that subsequent changes or alleged 
changes in the certified mechanism effectively converted it into a new 
and uncertified mechanism, and hence section 2261(b)(2)'s requirement 
of appointment of counsel pursuant to the certified mechanism was not 
satisfied in their cases. This observation reflects no judgment by the 
Attorney General as to whether certain changes in a certified mechanism 
would affect the applicability of chapter 154, and, if so, under what 
circumstances or to what extent. That is a matter that Federal habeas 
courts may consider if capital petitioners raise claims of this nature 
under section 2262(b)(2). The rule says no more on this question 
because resolving it is not any part of the Attorney General's 
certification functions under chapter 154.
    The analysis went on to note that in such circumstances, or in 
other circumstances in which there has been some change or alleged 
change in the State mechanism, the State could request a new 
certification by the Attorney General of its present capital counsel 
mechanism. That could avoid litigation in Federal habeas courts under 
28 U.S.C. 2261(b)(2) over the present status of the State mechanism and 
ensure that determinations regarding satisfaction of chapter 154's 
requirements are made by the Attorney General, subject to review by the 
D.C. Circuit Court of Appeals, as contemplated by 28 U.S.C. 2261(b)(1) 
and 2265(c)(2). The rule does not need to be changed to make this point 
because Sec.  26.23(d) in the rule already says that ``[a] State may 
request a new certification by the Attorney General to ensure the 
continued applicability of chapter 154 to cases in which State 
postconviction proceedings occur after a change or alleged change in 
the State's certified capital counsel mechanism.''
    Some comments urged that the rule should be changed to provide a 
means for decertification of State capital counsel mechanisms that the 
Attorney General has previously approved. One of the comments pointed 
in this connection to 5 U.S.C. 553(e), which in part requires agencies 
to give interested persons the right to petition for the repeal of a 
rule. However, that provision is inapplicable to chapter 154 
certifications, which are orders rather than rules, as noted above.
    Decertification could conceivably be effected in one of two ways: 
(i) through some procedure for examination or oversight of State 
capital counsel mechanisms following their certification to ascertain 
whether they continue to measure up under chapter 154's standards, or 
(ii) through modification of the rule to provide that a certification 
automatically lapses based on subsequent changes in the capital counsel 
mechanism or other changed circumstances.
    The argument for incorporating some provision for continual 
oversight and potential decertification of State capital counsel 
mechanisms is not persuasive for a number of reasons. First, the 
proposal conflates the functions assigned to the Attorney General and 
those reserved to Federal habeas courts under the current formulation 
of chapter 154, which limits the Attorney General's function to making 
general certification determinations upon request of an appropriate 
State official, see 28 U.S.C. 2261(b)(1), 2265(a)(1), and reserves 
case-specific inquiries affecting chapter 154's applicability to 
Federal habeas courts under 28 U.S.C. 2261(b)(2). Second, the chapter 
includes provisions that establish when a certification takes effect 
and direct the Attorney General to promulgate regulations to implement 
a certification procedure, see 28 U.S.C. 2265(a)(2), 2265(b), but no 
direction to the Attorney General to implement a decertification 
procedure. These considerations lead to the conclusion that day-to-day 
oversight and potential decertification of State capital counsel 
mechanisms are not among the Attorney General's authorized functions 
under chapter 154.
    Regarding the idea that a certification would automatically lapse 
based on subsequent events, such an approach would pose difficulties in 
operation, most prominently that certification should not cease to 
apply merely because the change might affect satisfaction of the 
chapter 154 requirements, and that it is unclear who would determine 
whether a change in the capital counsel system might affect 
satisfaction of the chapter 154 requirements.
    This rule accordingly responds to these difficulties by not 
including any provision for decertification, but providing in Sec.  
26.23(d) that a State may seek a new certification from the Attorney 
General to resolve uncertainties concerning chapter 154's continued 
applicability in light of subsequent changes or alleged changes in the 
State's certified capital counsel mechanism. This approach (i) avoids 
any question of legal consistency with chapter 154's definition of the 
Attorney General's authority and functions, and (ii) avoids the 
difficulties inherent in attempting to define ex ante and in the 
absence of any factual context the conditions and procedures for 
assessing whether and what changes to a State system should prompt a 
decertification review, but (iii) affords a means for resolution by the 
responsible authority under chapter 154 of questions that may arise in 
practice regarding the continued effectiveness of chapter 154 
certifications.
    Just as importantly, Sec.  26.23(e), discussed below, provides that

[[Page 58176]]

certifications are effective for a period of five years, thereby 
ensuring that a State capital counsel mechanism's current satisfaction 
of the chapter 154 requirements will be revisited at reasonable 
intervals. This addresses concerns about the possibility of subsequent 
changes in a State's system that could put it out of compliance with 
chapter 154, further reducing the force of any argument that a 
decertification procedure is needed.

Section 26.23(e)--Renewal of Certifications

    Section 26.23(e) provides that certifications remain effective for 
a period of five years. The addition of this provision, which was not 
in the proposed rule but was described in the supplemental notice of 
proposed rulemaking, see 77 FR at 7562, is responsive to many comments 
that pointed out that changed circumstances may affect whether a once-
certified mechanism continues to be adequate for purposes of chapter 
154. For example, inflation or changed economic circumstances may mean 
that provisions authorizing compensation of counsel at a specified 
hourly rate, which were sufficient at the time of an initial 
certification decision, are no longer adequate after the passage of 
years. Or changes may occur in the standards constituting a State's 
postconviction capital counsel mechanism that affect their consistency 
with chapter 154.
    Some commenters on the supplemental notice approved of this change 
but urged that the rule include more detail concerning the operation of 
the recertification process and the standards that would be applied in 
making recertification decisions. This is unnecessary because the 
process and standards for subsequent certification decisions are the 
same as those for initial certification decisions under the rule. The 
standards of Sec.  26.22 will be applied in deciding whether a State's 
capital counsel mechanism for which recertification is requested 
satisfies the chapter 154 requirements, and the procedure set forth in 
Sec.  26.23 will apply in entertaining, obtaining public input 
concerning, and deciding recertification requests.
    Two commenters objected to limiting the duration of certifications 
on the grounds that chapter 154 does not provide for the termination of 
certifications and that the sponsor of the 2006 amendments to chapter 
154 explained that they were intended to create a system of ``one-time 
certification.'' See 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) 
(statement of Sen. Kyl). Regarding the statutory question, the 
statutory framework is unquestionably premised on the continuing 
sufficiency of a mechanism once certified by the Attorney General. The 
quid pro quo that is the core and the animating purpose of chapter 154, 
procedural ``benefits'' for States if and only if they meet the 
statutory criteria, would cease to make sense if a certification were 
indefinitely and irrevocably effective even if--by virtue of changed 
circumstances, see infra (analysis statement)--the standards first put 
in place by a State no longer satisfied the statutory requirements. 
Providing for periodic review of certifications is fully consistent 
with the statutory text and avoids such an absurd result. If a statute 
requires an assessment of mutable conditions against legal standards, a 
reasonable time limit may be imposed on the effectiveness of a 
certification to ensure its continuing validity, even if the 
authorizing statute does not explicitly provide for a time limit. See 
Durable Mfg. Co. v. U.S. Dep't of Labor, 578 F.3d 497, 501-02 (7th Cir. 
2009) (upholding time limitation of validity of labor certificates in 
light of possible subsequent changes in economic circumstances 
affecting consistency with statutory requirements and objectives).
    Regarding the statement by the sponsor of the amendment, it 
reflects a rejection of the idea of a continuing ``compliance review'' 
process or ``decertification'' procedure under chapter 154 in light of 
(i) ``the substantial litigation burdens'' that would likely result for 
States that have been certified, including ``the cost of creating 
opportunities to force the State to continually litigate its chapter 
154 eligibility,'' (ii) the concern that ``if such a means of post-opt-
in review were created, it inevitably would be overused and abused,'' 
and (iii) the judgment that States ``are entitled to a presumption that 
once they have been certified as chapter-154 compliant, they will 
substantially maintain their counsel mechanisms.'' 152 Cong. Rec. S1625 
(daily ed. Mar. 2, 2006) (statement of Sen. Kyl). The statement further 
viewed a decertification procedure as enabling adverse parties to 
embroil States in challenges to the continued validity of their capital 
counsel mechanisms under chapter 154 based on case-specific deficits in 
their operation, such as delay in the appointment of counsel in 
particular cases for reasons beyond the State's control. See id.
    Considered as a whole, the sponsor's statement reflects concerns 
that would be implicated by the creation of a continuing oversight or 
decertification procedure for chapter 154. The Department, as discussed 
above, has not attempted to create such a procedure in the present 
rule.
    The provision adopted in Sec.  26.22(e) in the final rule does not 
implicate these concerns. It authorizes no person or entity to initiate 
challenges to the continuing validity of a certification, much less to 
involve a State in the uncertainty of perpetual litigation about the 
validity of a certification. Moreover, Sec.  26.22(e) provides that 
certifications remain effective for an uninterrupted period of five 
years after the completion of the certification process by the Attorney 
General and any related judicial review. If recertification is 
requested at or before the end of that period, the rule provides that 
the prior certification will remain in effect until the completion of 
the recertification process by the Attorney General and any related 
judicial review.
    Section 26.22(e) also does not implicate the concern about 
challenges based on case-specific non-compliance with State capital 
counsel mechanisms. Recertification decisions by the Attorney General 
will involve the same standards and procedures as initial certification 
decisions.
    Finally, the inclusion of Sec.  26.22(e) in the rule does not 
reflect an assumption that States are likely to abolish or materially 
weaken their chapter 154-compliant capital counsel mechanisms once they 
have been established. If no changes have occurred that take a State 
capital counsel mechanism out of compliance with chapter 154, then it 
will be recertified, and the recertification process will provide a 
definitive means of establishing continued satisfaction of the 
chapter's requirements.

Section-by-Section Analysis

Section 26.20

    Section 26.20 explains the rule's purpose of implementing the 
certification procedure for chapter 154. It is modified from the 
corresponding provision in the 2008 regulations to describe more fully 
the conditions for the applicability of chapter 154 under 28 U.S.C. 
2261(b).

Section 26.21

    Section 26.21 defines the terms ``appropriate state official'' and 
``state postconviction proceedings'' in the same manner as the 2008 
regulations, and adds a definition of ``appointment'' and ``indigent 
prisoners.''
    Chapter 154 involves a quid pro quo arrangement under which States 
provide for the appointment of counsel

[[Page 58177]]

for indigent petitioners in State postconviction proceedings in capital 
cases, and in return Federal habeas review is carried out with 
generally more limited time frames and scope following the State 
postconviction proceedings in which counsel has been made available. 
See 28 U.S.C. 2261-2266. In this context, not every provision for 
making counsel available in State postconviction proceedings, however 
belatedly, can logically be regarded as providing for the appointment 
of counsel in the sense relevant under the chapter. In particular, that 
would not be the case if the State capital counsel mechanism provided 
for the availability of counsel to represent indigent capital 
petitioners only after the deadline for pursuing State postconviction 
proceedings had passed; or only after the expiration of the time limit 
in 28 U.S.C. 2263 for Federal habeas filing; or only after such delay 
that the time available to prepare for and pursue State or Federal 
postconviction review had been seriously eroded. Section 26.21 
accordingly defines ``appointment'' to mean ``provision of counsel in a 
manner that is reasonably timely in light of the time limitations for 
seeking State and Federal postconviction review and the time required 
for developing and presenting claims in the postconviction 
proceedings.''
    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. Provisions that 
separately addressed the application of chapter 154 to these systems 
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-[agrave]-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 generally 152 Cong. 
Rec. S1620 (daily ed. Mar. 2, 2006) (statement 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 providing counsel 
for indigents at trial and on appeal by extending the provision of 
counsel to indigent capital petitioners 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 specifically referring to collateral 
proceedings rather than to all proceedings that occur after conviction 
(e.g., sentencing proceedings, direct review). 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 postconviction 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) (statement of Sen. Kyl) 
(explaining that chapter 154 provides incentives for States to provide 
counsel in State postconviction proceedings, referring to collateral 
proceedings); 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 2005) 
(extension of remarks of Rep. Flake) (displaying the same 
understanding); see also, e.g., Murray v. Giarratano, 492 U.S. 1 (1989) 
(using the terms postconviction and collateral proceedings 
interchangeably).

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 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 
OLC Opinion. The latter understanding is supported by cases 
interpreting chapter 154, see, e.g., Spears, 283 F.3d at 1013 
(recognizing that ``Congress . . . intended the states to have 
substantial discretion to determine the substance of the competency 
standards'' under chapter 154 while still reviewing the adequacy

[[Page 58178]]

of such standards), and by the original Powell Committee proposal from 
which many features of chapter 154 ultimately derive, see 135 Cong. 
Rec. 24696 (1989). This understanding is adopted in Sec.  26.22(b) of 
the final rule.
    The specific 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. Section 26.22(b)(1) 
sets out two approaches that will presumptively be considered adequate 
to satisfy chapter 154--an option involving an experience requirement 
derived from the standard for appointment of counsel in Federal court 
proceedings in capital cases (paragraph (b)(1)(i)), and an option 
involving qualification standards set in a manner consistent with 
relevant portions of the IPA (paragraph (b)(1)(ii)). Section 
26.22(b)(2) provides that States can satisfy chapter 154's requirements 
by reasonably assuring an appropriate level of proficiency in other 
ways, such as by requiring some combination of experience and training.
    As indicated in the introductory language in subsection (b)(1) of 
Sec.  26.22, State capital counsel mechanisms will be regarded as 
presumptively adequate in relation to counsel competency if they meet 
or exceed the benchmark standards identified in the subsection. States 
will not be penalized for going beyond the minimum required by the 
rule. Thus, for example, in relation to paragraph (b)(1)(i), State 
competency standards will be considered presumptively sufficient if 
they require five years of postconviction 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 may pass muster by requiring 
that appointed counsel either satisfy an experience standard sufficient 
under paragraph (b)(1)(i) or satisfy an alternative standard sufficient 
under paragraph (b)(2) involving more limited experience but an 
additional training requirement.
Option 1: Sec.  26.22(b)(1)(i)--The Competency Standards for Federal 
Court Proceedings
    As provided in paragraph (b)(1)(i) 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 postconviction 
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 a counsel competency 
standard of this nature is adequate for capital cases in Federal court 
proceedings, including postconviction proceedings, see 18 U.S.C. 
3599(a)(2), it will also presumptively 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 a 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. 18 U.S.C. 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 relevant 
litigation experience. The rule in paragraph (b)(1)(i) 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 exception allowed in 18 U.S.C. 3599, 
i.e., appointment by a court, for good cause, of attorneys 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 
recognizes, as in section 3599, that courts may properly be allowed, 
for good cause, to depart from the specified experience requirement, 
which the Department expects would occur only in exceptional cases.
Option 2: Sec.  26.22(b)(1)(ii)--The Innocence Protection Act Standards
    Paragraph (b)(1)(ii) in Sec.  26.22 sets forth a second approach 
that presumptively satisfies the counsel competency requirements of 
chapter 154, specifically, by setting qualification standards for 
appointment of postconviction capital counsel in a manner consistent 
with the IPA. 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'' in 42 
U.S.C. 14163(e) that is largely based on elements of the ABA 
Guidelines. Compare 42 U.S.C. 14163(e), with ABA Guidelines Sec.  3.1, 
at 22-23. 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,'' ``maintain a roster of qualified attorneys,'' ``conduct, 
sponsor, or approve specialized training programs,'' and monitor and 
disqualify from subsequent appointment attorneys whose performance is 
ineffective or unethical or who fail to participate in required 
training. 42 U.S.C. 14163(e)(2)(A), (B), (D), (E). The IPA does not 
prescribe the content of the required counsel qualification standards, 
but assumes that the specifications regarding the nature of the 
appointment or selection authority--and the associated requirements for 
post-appointment monitoring and potential disqualification--can be 
relied on to provide appropriate competency standards.
    Paragraph (b)(1)(ii) in Sec.  26.22 follows this legislative 
judgment in relation to a State's satisfaction of the counsel 
competency requirements of chapter

[[Page 58179]]

154. Thus, a State's capital counsel mechanism will presumptively be 
deemed adequate for purposes of chapter 154's counsel competency 
requirements if it provides for the appointment and qualification (or 
disqualification) of counsel in State postconviction proceedings in 
capital cases in a manner consistent with 42 U.S.C. 14163(e)(1) and 
14163(e)(2)(A), (B), (D), (E).
Option 3: Sec.  26.22(b)(2)--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. The options described in 
paragraphs (b)(1)(i) and (ii) 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 standards similar to those 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 continued to use the more general 
language of chapter 154 relating to counsel competency.
    Consequently, as provided in paragraph (b)(2) 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 forth in 
paragraph (b)(1)(i) or (b)(1)(ii). 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 
of these considerations 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 petitioner); 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.  5.1(B)(2), at 35, Sec.  8.1(B), at 46 
(recommending skill and training requirements for capital counsel).
    Also, the rule in subparagraphs (b)(1)(i) and (ii) of Sec.  26.22 
identifies particular approaches that will be considered presumptively 
adequate, namely, those of the Federal capital counsel statute, 18 
U.S.C. 3599, or the IPA, 42 U.S.C. 14163(e)(1), (2)(A) (B), (D), (E). 
These approaches accordingly serve as benchmarks, and a State's 
adoption of competency requirements that are likely to result in 
similar or even higher levels of proficiency will weigh in favor of a 
finding of adequacy for purposes of chapter 154. Conversely, State 
competency standards that appear likely to result in significantly 
lower levels of proficiency compared to the benchmark levels risk being 
found inadequate under chapter 154.
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 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 presumptively 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)(i), is compensation 
comparable to that authorized by Congress for representation in Federal 
habeas corpus proceedings reviewing State capital cases in 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)(ii), is 
compensation comparable to that of retained counsel who meet competency 
standards sufficient under paragraph (b). The IPA 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), at 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)(iii), 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 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)(iv), is 
compensation comparable to that of attorneys representing the State in 
State postconviction proceedings in capital cases. This option also 
follows the IPA 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), at 49. The rule allows this approach for compensation of 
both public defenders and private counsel, but recognizes that private

[[Page 58180]]

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)(iv) 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, 220 F.3d at 285-86 (finding that compensation resulting in 
substantial losses to 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)(iii), 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) (overall $7500 limit on compensation 
was not facially inadequate under chapter 154 and was not shown 
inadequate in the particular case), vacated in part on other grounds, 
105 F.3d 209 (5th Cir. 1997).
    As with the counsel competency benchmarks of paragraph (b)(1), 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. 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 of counsel in conformity with different standards. For example, 
a State might provide for representation of some indigent capital 
petitioners in postconviction proceedings by appointed private counsel 
and some by public defender personnel, compensate the private counsel 
in conformity with paragraph (c)(1)(iii), and compensate the public 
defender counsel in conformity with paragraph (c)(1)(iv).
    The rule recognizes that the options set out in paragraph (c)(1) of 
Sec.  26.22 are not necessarily the only means by which a State may 
provide compensation for 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) 
(under the IPA, State may compensate under qualifying statutory 
procedure predating that 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 petitioners in 
postconviction proceedings by means not dependent on any special 
financial incentive for accepting appointments, such as by providing 
sufficient salaried public defender personnel to competently 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) may be 
found to satisfy the statutory requirement if they are otherwise 
reasonably designed to ensure the availability of competent counsel. As 
with Sec.  26.22(b)(2) of the rule, mechanisms seeking to qualify under 
paragraph (c)(2) that appear likely to provide for significantly lesser 
compensation compared to the benchmark levels risk being found 
inadequate under chapter 154.
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 a 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 special Federal

[[Page 58181]]

habeas corpus review procedures apply in cases in which two 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 
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 
in that case. Similarly, if a State later changes or is alleged to have 
changed the certified mechanism, litigation before Federal habeas 
courts may result under 28 U.S.C. 2261(b)(2) as to whether the State 
has in fact materially changed its mechanism and, if so, whether the 
change means that counsel (even if appointed) was appointed pursuant to 
what is effectively a new and uncertified mechanism, rather than the 
mechanism certified by the Attorney General.
    The second sentence of paragraph (d) accordingly provides that a 
State may seek a new certification by the Attorney General if there is 
a change or alleged change in 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 special 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 DC 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 2013, the State postconviction 
proceedings in a capital case are carried out in 2014 and 2015 with 
counsel in those proceedings appointed pursuant to the certified 
mechanism, and Federal habeas corpus proceedings in the case commence 
in 2016. Suppose further that the State makes some change in 2016 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.
    Section 26.23(e) provides in part that a chapter 154 certification 
remains effective for a period of five years. This takes account of the 
possibility of changes over time in a State's standards constituting 
its postconviction capital counsel mechanism, and the possibility of 
other changes in a State that may affect the continuing sufficiency 
over time of standards initially adopted by a State and certified under 
chapter 154. For example, a State provision authorizing compensation of 
counsel at a specified hourly rate may initially be reasonably designed 
to ensure the availability for appointment of competent counsel, but 
that may no longer be the case after the passage of years in light of 
inflation or other changed economic circumstances. Cf. Durable Mfg. 
Co., 578 F.3d at 501-02 (upholding time limitation of validity of labor 
certificates in light of possible subsequent changes in economic 
circumstances affecting consistency with statutory requirements and 
objectives). Providing for some limitation on the lifespan of 
certifications and requiring renewal allows questions concerning the 
continued adequacy of the mechanism's standards, including whether they 
continue to apply, to be reexamined at regular intervals, each time 
with increased information about a State's actual experience with its 
mechanism, rather than assuming that a once-compliant State system is 
compliant indefinitely. At the same time, overly stringent limits on 
the duration of certifications could unduly burden States and undermine 
the incentive States have under chapter 154 to undertake the effort to 
establish compliant mechanisms and seek their certification.
    Balancing these considerations, Sec.  26.23(e) in the rule provides 
a basic period of five years during which a certification remains 
valid, with further provisions regarding the beginning and end of the 
period to promote the uninterrupted availability of the benefits of 
chapter 154 to a certified State when seeking recertification. As 
provided in 28 U.S.C. 2265(a)(2), the effectiveness of a certification 
is backdated to the date the certified capital counsel mechanism was 
established, but under the rule the five-year limit on its duration 
does not begin to run until the completion of the certification process 
by the Attorney General and any related judicial review. Moreover, the 
rule provides that a certification remains effective for an additional 
period extending until the conclusion of the Attorney General's 
disposition of the State's recertification request and any judicial 
review thereof, if the State requests recertification at or before the 
end of the five-year period.

Regulatory Certifications

Executive Order 13563 and 12866

    As described in Executive Order 13563, Improving Regulation and 
Regulatory Review (Jan. 18, 2011), agencies must, to the extent 
permitted by law, propose or adopt a regulation only upon a reasoned 
determination that its benefits justify its costs; tailor the 
regulation to impose the least burden on society, consistent with 
obtaining the regulatory objectives; and, in choosing among alternative 
regulatory approaches, select those approaches that maximize net 
benefits. Executive Order 13563 recognizes that some benefits and costs 
are difficult to quantify and provides that, where appropriate and 
permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    The Department of Justice has determined that this rule is a 
``significant regulatory action'' under

[[Page 58182]]

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 effects as described in section 3(f)(1) of the Executive Order.
    This rule has no effect on States unless they decide that they wish 
to qualify for chapter 154 certification. If States do decide to apply 
for chapter 154 certification, the 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 system that complies with this rule.
    These costs cannot be exactly quantified because (i) we do not know 
how many States will try to seek certification based on their own 
analysis of whether it is beneficial on balance to do so; (ii) the rule 
provides States wide latitude to design their own appointment 
mechanism; (iii) the rule affords the Attorney General discretion in 
making certification decisions; and (iv) there are non-quantifiable 
benefits to providing an opt-in system that may outweigh the costs such 
as improved fairness and equity in capital counsel systems. Absent a 
State's application and public comment, the Department cannot determine 
whether the Attorney General would decide, in his discretion, to 
certify that the State's capital counsel mechanism satisfies this rule.
    Moreover, even if the Department could determine at this time that 
a State's mechanism fails to meet this rule's standards, the Department 
does not have the data necessary to calculate the costs of making the 
State mechanism compliant and the rule gives States substantial 
discretion to correct any perceived shortfall in a myriad of ways. 
Thus, any cost projections would need to be specific to each State and 
would depend on unknown variables such as how a State will design 
compensation and competency standards and whether and how the Attorney 
General will exercise discretion. Against this background, the 
Department cannot quantify the costs and benefits of this rule.
    Despite the impracticability of exact quantification, the 
Department can confidently project that the annual cost will not exceed 
$100 million. At the end of 2010, 36 States held 3,100 prisoners under 
sentence of death. See Bureau of Justice Statistics, Office of Justice 
Programs, U.S. Department of Justice, Capital Punishment, 2010--
Statistical Tables at 8, table 4 (Dec. 2011), available at https://www.bjs.gov/content/pub/pdf/cp10st.pdf. Regarding the costs of 
satisfying the requirements of this rule, 35 of the 36 States 
accounting for capital cases in the United States already provide for 
appointment of counsel in State postconviction proceedings. These 
States may still fall short of satisfying this rule's standards, in 
relation to such matters as payment of litigation expenses or 
compensation of counsel, but this rule affords States a variety of 
options that may minimize any resulting increase in costs.
    Assuming that all 36 States that currently have the death penalty 
will upgrade their postconviction capital counsel mechanisms to the 
extent necessary to satisfy this rule, and that the number of capital 
cases pending in State postconviction proceedings in a year is 2,000, 
the total cost for the States to comply with this rule could not reach 
$100 million unless the average increase in litigation costs were 
$50,000 for each case. While for the reasons explained above we have 
not estimated the costs for States to satisfy this rule, we have no 
reason to believe that costs would increase to that degree.
    States that obtain certification by the Attorney General under this 
rule could realize costs savings resulting from chapter 154's expedited 
procedures in subsequent Federal habeas corpus review. See 28 U.S.C. 
2262, 2264, 2266. Chapter 154's expedited procedures offer States the 
benefits of: (i) Definite rules regarding the commencement and 
expiration of stays of execution, see 28 U.S.C. 2262; (ii) clearer and 
more circumscribed rules regarding the claims cognizable on federal 
habeas corpus review, see 28 U.S.C. 2264; (iii) general times frames of 
450 days and 120 days respectively for decision of capital habeas 
petitions by federal district courts and courts of appeals, see 28 
U.S.C. 2266(b)(1); and (iv) limited allowances for the amendment of 
such petitions, see 28 U.S.C. 2266(b)(3). In addition, because the 
States would more fully defray the costs of representing indigent 
capital petitioners 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.
    Along with the cost savings States could obtain, this rule also 
affords indigent capital petitioners non-quantifiable benefits. If a 
State chooses to ``opt-in'' to Chapter 154, an indigent capital 
petitioner is more likely to be represented by competent counsel in 
state postconviction proceedings--proceedings in which there is no 
constitutional right to counsel. The timely appointment of qualified 
counsel also provides indigent capital petitioners the opportunity to 
properly and promptly present their challenges in postconviction 
proceedings without the severe time pressure created by the belated 
entry of a lawyer. Above all, the rule's requirement of timely 
appointment of competent counsel seeks to provide an indigent capital 
petitioner the benefit of a collateral review that will be fair, 
thorough, and the product of capable and committed advocacy.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. It provides only a framework for those 
States that wish to qualify for the benefits of the expedited habeas 
procedures of chapter 154 of title 28 of the 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

[[Page 58183]]

the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532.

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 
enterprises to compete with foreign-based enterprises 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 amended as 
follows:

PART 26--DEATH SENTENCES PROCEDURES

0
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.


0
2. A new Subpart B is added to part 26 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.

Subpart B--Certification Process for State Capital Counsel Systems


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 the Attorney General 
certifies that a State has established such a mechanism, sections 2262, 
2263, 2264, and 2266 of chapter 154 of title 28 apply in relation to 
Federal habeas corpus review of State capital cases in which counsel 
was appointed pursuant to that mechanism. These sections will also 
apply in Federal habeas corpus review of capital cases from a State 
with a mechanism certified by the Attorney General in which petitioner 
validly waived counsel, petitioner retained counsel, or petitioner was 
found not to be indigent, as provided in section 2261(b) of title 28. 
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--
    Appointment means provision of counsel in a manner that is 
reasonably timely in light of the time limitations for seeking State 
and Federal postconviction review and the time required for developing 
and presenting claims in the postconviction proceedings.
    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 of the State.
    Indigent prisoners means persons whose net financial resources and 
income are insufficient to obtain qualified counsel.
    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.
    (1) A State's standards of competency are presumptively adequate if 
they meet or exceed either of the following criteria:
    (i) Appointment of counsel who have been admitted to the bar for at 
least five years and have at least three years of postconviction 
litigation experience. But a court, for good cause, may appoint other 
counsel whose background, knowledge, or experience would otherwise 
enable them to properly represent the petitioner, with due 
consideration of the seriousness of the penalty and the unique and 
complex nature of the litigation; or
    (ii) Appointment of counsel meeting qualification standards 
established in conformity with 42 U.S.C. 14163(e)(1) and (2)(A), if the 
requirements of 42 U.S.C. 14163(e)(2)(B), (D), and (E) are also 
satisfied.
    (2) Competency standards not satisfying the benchmark criteria in 
paragraph (b)(1) of this section will be deemed adequate only if they 
otherwise 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 is presumptively 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);
    (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 benchmark 
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.

[[Page 58184]]

    (d) The mechanism must provide for payment of reasonable litigation 
expenses of appointed counsel. Such expenses may include, but are not 
limited to, payment for investigators, mitigation specialists, mental 
health and forensic science experts, and support personnel. Provision 
for reasonable litigation expenses may incorporate presumptive limits 
on 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 of this subpart.
    (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, or any subsequent notice the Attorney General may 
publish providing a further opportunity for comment. 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 chapter 154's 
requirements. A State may request a new certification by the Attorney 
General to ensure the continued applicability of chapter 154 to 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.
    (e) A certification remains effective for a period of five years 
after the completion of the certification process by the Attorney 
General and any related judicial review. If a State requests re-
certification at or before the end of that five-year period, the 
certification remains effective for an additional period extending 
until the completion of the re-certification process by the Attorney 
General and any related judicial review.

    Dated: September 11, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-22766 Filed 9-20-13; 8:45 am]
BILLING CODE P