Certification of Arizona Capital Counsel Mechanism, 20705-20721 [2020-07617]

Agencies

• Department of Justice

[Federal Register Volume 85, Number 72 (Tuesday, April 14, 2020)]
[Notices]
[Pages 20705-20721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07617]


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DEPARTMENT OF JUSTICE

[Docket No. OAG-167; AG Order No. 4666-2020]


Certification of Arizona Capital Counsel Mechanism

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

ACTION: Notice.

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SUMMARY: Federal law makes certain procedural benefits available to 
States in federal habeas corpus review of capital cases, where the 
Attorney General certifies that the State has established a 
postconviction capital counsel mechanism satisfying the chapter's 
requirements. The Attorney General certifies in this notice that 
Arizona has such a mechanism, which was established on May 19, 1998.

[[Page 20706]]


DATES: Pursuant to 28 U.S.C. 2265(a)(2), the effective date of the 
certification in this notice is May 19, 1998.

FOR FURTHER INFORMATION CONTACT: Laurence Rothenberg, Deputy Assistant 
Attorney General, Office of Legal Policy, U.S. Department of Justice, 
950 Pennsylvania Avenue NW, Washington, DC 20530; telephone (202) 532-
4465.
    Certification: Chapter 154 of title 28, United States Code, 
provides special federal habeas corpus review procedures for state 
capital cases where (i) the Attorney General has certified that the 
State has established a postconviction counsel appointment mechanism 
for indigent capital defendants that meets the requirements stated in 
the chapter, and (ii) counsel was appointed pursuant to the certified 
mechanism, the defendant validly waived or retained counsel, or the 
defendant was not indigent. 28 U.S.C. 2261(b). Chapter 154 directs the 
Attorney General to determine, if requested by an appropriate state 
official, whether the State has established a qualifying mechanism for 
appointment of postconviction capital counsel, the date on which the 
mechanism was established, and whether the State provides standards of 
competency for such appointments. Id. Sec.  2265(a).
    Having considered the relevant statutes, rules, and policies in 
Arizona, submissions by the Arizona Attorney General, and the extensive 
public comments thereon, and exercising the authority conferred on me 
by 28 U.S.C. 2265, I determine and certify that Arizona has established 
a mechanism for the appointment, compensation, and payment of 
reasonable litigation expenses of competent counsel in state 
postconviction proceedings brought by indigent prisoners who have been 
sentenced to death, including provision of standards of competency for 
the appointment of counsel in such proceedings, which satisfies the 
requirements of chapter 154. I further determine and certify that 
Arizona had an established capital counsel mechanism satisfying the 
requirements of chapter 154 as of May 19, 1998, and that Arizona has 
continuously had a capital counsel mechanism satisfying the 
requirements of chapter 154 since that date. Arizona has not requested 
certification of its postconviction capital counsel mechanism as it was 
prior to May 19, 1998, and this certification reflects no judgment or 
opinion whether Arizona had a postconviction capital counsel mechanism 
satisfying the requirements of chapter 154 before that date.

SUPPLEMENTARY INFORMATION: The remainder of this notice explains the 
background of, and reasons for, my certification of Arizona's 
postconviction capital counsel mechanism under the following headings:

I. Procedural History
II. Assessment of Arizona's Mechanism Under Chapter 154
    A. Chapter 154--As Enacted in 1996 and As Amended in 2006
    B. Appointment Requirement and Procedures
    C. Counsel Competency
    D. Compensation of Counsel
    E. Payment of Reasonable Litigation Expenses
    F. Timeliness of Appointment
III. Date the Mechanism Was Established
IV. Other Matters
    A. Time Limits under Chapter 154
    B. Validity of the Implementing Rule
    C. Request for a Stay

I. Procedural History

    Chapter 154 applies to cases arising under 28 U.S.C. 2254 brought 
by prisoners in State custody who are subject to a capital sentence if 
``(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) 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). Where the chapter applies, federal 
habeas review is conducted in conformity with special provisions 
relating to stays of execution, the time available for federal habeas 
filing, the scope of federal habeas review, and the time for completing 
the adjudication of federal habeas petitions. See 28 U.S.C. 2262-66.
    Chapter 154 derives from a proposal developed in 1989, under the 
leadership of Justice Lewis F. Powell, to address the problem of 
protracted and repetitive litigation in capital cases and to fill a gap 
in representation for capital defendants at the stage of state 
postconviction review. The proposal contemplated that more expeditious 
procedures would apply, with greater finality, in federal habeas corpus 
review of capital cases in States that appoint counsel for indigent 
capital defendants in state collateral proceedings. See 135 Cong. Rec. 
24694-98 (1989); 137 Cong. Rec. 6012-14 (1991); H.R. Rep. 104-23, at 
10-11 (1995) (House Judiciary Committee Report).
    Congress enacted chapter 154 as part of the Antiterrorism and 
Effective Death Penalty Act of 1996. See Public Law 104-132, sec. 
107(a), 110 Stat. 1214, 1221-26. Under chapter 154 in its original 
form, federal habeas courts determined the applicability of chapter 
154's expedited federal habeas review procedures in the context of 
adjudicating federal habeas petitions filed by state capital 
defendants. Litigation relating to States' satisfaction of chapter 
154's requirements ensued in various States, resulting in a substantial 
body of district court and court of appeals precedent interpreting 
chapter 154, as well as a related decision by the Supreme Court in 
Calderon v. Ashmus, 523 U.S. 740 (1998).
    In relation to Arizona, in particular, the Ninth Circuit Court of 
Appeals, in Spears v. Stewart, 283 F.3d 992 (9th Cir. 2002), considered 
the question with which I am now presented--whether Arizona has 
established a postconviction capital counsel mechanism that satisfies 
chapter 154's requirements. The Ninth Circuit answered that question in 
the affirmative. See id. at 1008-18. However, the court concluded that 
chapter 154's expedited federal habeas review procedures would not 
apply in the case before it because Arizona had not appointed counsel 
for petitioner in conformity with the mechanism. See id. at 1018-19.
    In 2006, Congress enacted amendments that brought chapter 154 into 
its current form. See Public Law 109-177, sec. 507, 120 Stat. 250, 250-
51 (codified in part at 28 U.S.C. 2265). The amendments transferred 
responsibility for determining a State's satisfaction of chapter 154's 
requirements from the regional federal courts to the Attorney General, 
subject to de novo review by the D.C. Circuit Court of Appeals. See 28 
U.S.C. 2265. Under the revised scheme, the Attorney General, if 
requested by an appropriate state official, makes a determination and 
certification whether the State has established a postconviction 
capital counsel mechanism satisfying the chapter's requirements, with 
exclusive review of the certification by the D.C. Circuit. See 28 
U.S.C. 2265(a), (c).
    The 2006 amendments reflected a legislative judgment that the 
Attorney General and the D.C. Circuit would best be able to make 
disinterested determinations regarding state counsel systems' 
satisfaction of chapter 154. The amendments also added a provision 
stating that there are no requirements for certification or application 
of chapter 154 other than those expressly stated in the chapter, 28 
U.S.C. 2265(a)(3), reflecting congressional concern that some courts 
had declined to apply chapter 154 on grounds going beyond those 
Congress had deemed to be warranted in its formulation of

[[Page 20707]]

chapter 154, see 152 Cong. Rec. 2441, 2445-46 (2006) (remarks of Sen. 
Kyl); 151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extension of 
remarks of Rep. Flake).
    Chapter 154 directs the Attorney General to promulgate regulations 
to implement the certification procedure. 28 U.S.C. 2265(b). Attorney 
General Mukasey in 2008 issued an initial implementing rule for chapter 
154. See 73 FR 75327, 75327-39 (Dec. 11, 2008). The original rule 
tracked chapter 154's express requirements in light of 28 U.S.C. 
2265(a)(3)'s specification that ``[t]here are no requirements for 
certification or for application of this chapter other than those 
expressly stated in this chapter.'' Attorney General Holder rescinded 
the original rule and replaced it in 2013 with the current rule. See 28 
CFR 26.20-26.23; see also 78 FR 58160, 58160-84 (Sept. 23, 2013).
    The regulations provide for the Attorney General to publish a 
notice in the Federal Register of a State's requests for chapter 154 
certification, to include solicitation of public comment on the 
request, and for the Attorney General to review the request and 
consider timely public comments received in response to the notice. 28 
CFR 26.23(b)-(c). The certification procedure was delayed for a number 
of years because a district court enjoined the regulations from taking 
effect. The Ninth Circuit later vacated the injunction, allowing the 
regulations to take effect. See Habeas Corpus Resource Ctr. v. U.S. 
Dep't of Justice, 816 F.3d 1241 (9th Cir. 2016), cert. denied, 137 S. 
Ct. 1338 (2017).
    Arizona has requested that the Attorney General certify its capital 
counsel mechanism under chapter 154. The materials relating to 
Arizona's request are available at www.justice.gov/olp/pending-requests-final-decisions. The main occurrences in the certification 
process relating to Arizona have been as follows:
    Arizona initially requested chapter 154 certification by letter 
from its Attorney General dated April 18, 2013. After the Ninth Circuit 
vacated the injunction against the certification process, the 
Department of Justice (``Department'') published a notice in the 
Federal Register inviting public comment on Arizona's request for 
certification and providing a 60-day comment period. 82 FR 53529 (Nov. 
16, 2017). Because of the passage of time since Arizona's original 
request, the Department sent a letter to the Arizona Attorney General 
dated November 16, 2017, advising of the publication, seeking 
confirmation that the materials previously submitted by the State were 
still current, and asking whether the State wished to supplement, 
modify, or update its request for certification. The Arizona Attorney 
General responded by letter of November 27, 2017, which provided 
updated information. The Department then published a second notice, 
which noted the updated request from Arizona and provided 60 days for 
public comment running from publication of the notice. 82 FR 61329 
(Dec. 27, 2017).
    The Department received 140 comments from organizations and 
individuals in response to these solicitations. The most extensive 
comment was from the Federal Public Defender for the District of 
Arizona (AFPD), consisting of a 163-page document and voluminous 
exhibits. Other organizational commenters included the Arizona Capital 
Representation Project, the American Bar Association, the Innocence 
Project, the Arizona Justice Project, Federal Public Defenders, Arizona 
Voice for Crime Victims, the Phillips Black Project, the American Civil 
Liberties Union, and Arizona Attorneys for Criminal Justice. Many 
comments were also received from persons under sentence of death in 
Arizona or their lawyers.
    On June 29, 2018, the Department sent a letter to the Arizona 
Attorney General requesting that the State provide additional 
information about its postconviction capital counsel mechanism, based 
on questions that had arisen during the Department's review of the 
State's request for certification and the public comments received. The 
Arizona Attorney General sent a responsive letter on October 16, 2018. 
The following month, the Department published a third notice to provide 
an opportunity for public comment with respect to the additional 
information the Arizona Attorney General had submitted. 83 FR 58786 
(Nov. 21, 2018). The Department received 17 comments during the 45-day 
comment period in response to this notice.
    The ensuing section of this statement explains the basis for 
granting chapter 154 certification to Arizona. I discuss initially 
certain issues with cross-cutting significance and then analyze 
Arizona's capital counsel mechanism in relation to the elements 
required by chapter 154, including appointment, competency standards, 
compensation, and payment of reasonable litigation expenses for 
postconviction capital counsel. With respect to each element, I (i) 
identify the statutory basis of the requirement and the pertinent 
Arizona laws and policies, (ii) review judicial precedent and its 
continuing relevance (or not) given later changes in Arizona's 
mechanism and chapter 154, and (iii) explain the interpretation of 
chapter 154's requirements in the Department's regulations and 
Arizona's satisfaction of these requirements as construed in the 
regulations. The concluding section discusses additional matters, 
including objections to certification of Arizona's mechanism based on 
time limitation rules appearing in chapter 154, the validity of the 
implementing rule, and a request that I stay the certification.

II. Assessment of Arizona's Mechanism Under Chapter 154

A. Chapter 154--As Enacted in 1996 and As Amended in 2006

    Chapter 154 directs the Attorney General, if requested by an 
appropriate state official, to determine (i) whether the State has 
established a mechanism for the appointment, compensation, and payment 
of reasonable litigation expenses of competent counsel in state 
postconviction proceedings brought by indigent prisoners who have been 
sentenced to death, and (ii) whether the State provides standards of 
competency for the appointment of such counsel. 28 U.S.C. 2265(a). 
Additional specifications relating to the appointment of postconviction 
counsel appear in 28 U.S.C. 2261(c)-(d).
    As noted above, I do not write on a clean slate in addressing 
Arizona's request for certification. Prior to 2006, the Attorney 
General was not involved in chapter 154 determinations, which were 
instead made by the federal courts entertaining federal habeas 
petitions filed by state prisoners under sentence of death. In 
particular, in 2002, the Ninth Circuit concluded that Arizona had 
established a capital counsel mechanism satisfying chapter 154's 
requirements. See Spears, 283 F.3d at 1007-19.
    The analysis in Spears remains relevant because Arizona's capital 
counsel mechanism has remained largely the same since the Ninth 
Circuit's decision in that case, and the elements of an adequate state 
capital counsel mechanism as required by chapter 154 are largely the 
same as those required by chapter 154 at the time of that decision. 
Moreover, the case law under chapter 154, and particularly Spears, 
provided the background for the development of the Department's 
implementing regulations for chapter 154 that I now apply. The judicial 
precedent accordingly elucidates and supports many aspects of the 
Department's rule in its application to Arizona. See, e.g., 78 FR at 
58170, 58172, 58178, 58180.

[[Page 20708]]

    Discussion of Spears and other decisions was also prominent in the 
public comments on Arizona's request for certification. The comments 
argued that aspects of the judicial decisions that would support 
Arizona's certification should be considered no longer relevant or 
applicable, based on changes in Arizona's capital counsel mechanism 
over time or for other reasons, but they pointed to other aspects of 
the decisions as still pertinent and as implying that certification 
should be denied. I accordingly discuss below, in relation to each 
required element of an adequate state capital counsel mechanism under 
chapter 154, to what extent later changes affect the relevance of the 
Ninth Circuit's decision and other judicial interpretations of chapter 
154.
    Before turning to the analysis of particular issues, I should 
address public comments on Arizona's request for certification which 
suggested that the Ninth Circuit's determination regarding Arizona's 
capital counsel mechanism should be dismissed as dictum. The basis for 
the objection is that the court in Spears found that Arizona's 
mechanism satisfies chapter 154's requirements, but it nevertheless 
denied the State the benefit of chapter 154's review procedures on the 
ground that the State had not fully complied with its rules for 
appointing counsel in that case. In Railroad Companies v. Schutte, 103 
U.S. 118 (1880), the Supreme Court explained the precedential weight of 
decisions of this nature:

    It cannot be said that a case is not authority on one point 
because, although that point was properly presented and decided in 
the regular course of the consideration of the cause, something else 
was found in the end which disposed of the whole matter. Here the 
precise question was properly presented, fully argued, and 
elaborately considered in the opinion. The decision on this question 
was as much a part of the judgment of the court as was that on any 
other of the several matters on which the case as a whole depended . 
. . . If the decision is not conclusive on us, it is of high 
authority under the circumstances, and we are not inclined to 
disregard it. Id. at 143.

    The Supreme Court's discussion in Schutte fits exactly the Ninth 
Circuit's decision in Spears. I similarly view the Ninth Circuit's 
determination that Arizona's mechanism satisfies chapter 154 as 
persuasive authority of substantial weight and I am ``not inclined to 
disregard it,'' id.
    At the same time, I note a change in chapter 154 that makes my 
analysis different in an important respect from the preceding judicial 
consideration of these issues. Public comments opposing Arizona's 
request for certification have noted judicial decisions that held that 
a State could not receive the procedural benefits of chapter 154 in a 
particular case if the State did not comply with the requirements of 
its capital counsel mechanism in that case. See, e.g., Spears, 283 F.3d 
at 1018-19 (failure to appoint counsel within time required by state 
mechanism); Tucker v. Catoe, 221 F.3d 600, 604-05 (4th Cir. 2000) 
(failure to appoint counsel meeting state competency standards). Based 
on these decisions, the comments argued, I should deny Arizona's 
request for certification if, for example, the State's competency 
standards for appointment have not been consistently satisfied.
    Judicial decisions of this nature, however, reflected the pre-2006 
version of chapter 154, under which requests to apply chapter 154's 
procedures were presented to federal habeas courts in particular cases. 
In that posture, courts could consider both the general question 
whether the State had established a mechanism satisfying chapter 154 
and, if so, whether counsel for the petitioner in the particular case 
had been appointed in compliance with that mechanism. Following the 
2006 amendments to chapter 154, however, only the general certification 
function is assigned to the Attorney General, see 28 U.S.C. 2265, and 
ascertaining whether counsel was appointed pursuant to the certified 
mechanism, as provided in section 2261(b)(2), is reserved to federal 
habeas courts. See 78 FR at 58162-63, 58165. Consequently, comments 
supposing that I must undertake case-specific review of the operation 
of Arizona's mechanism, and deny certification based on asserted 
deficiencies in practice, misapprehend the current division of labor 
under chapter 154 between the Attorney General and federal habeas 
courts.

B. Appointment Requirement and Procedures

    Subsection (c) of 28 U.S.C. 2261 provides that a qualifying capital 
counsel mechanism must offer postconviction counsel to all prisoners 
under capital sentence and provide for court orders appointing such 
counsel for indigent prisoners (absent waiver). Subsection (d) provides 
that postconviction counsel may not be the trial counsel unless the 
prisoner and trial counsel expressly request continued representation. 
The Department's implementing regulations for chapter 154, 28 CFR 
26.22(a), track these statutory requirements.
    Arizona's capital counsel mechanism satisfies these requirements. 
Its statutes and rules provide for the appointment by court order of 
postconviction counsel for prisoners under sentence of death, unless 
waived, and provide that postconviction counsel cannot be the same as 
trial counsel unless the defendant and counsel expressly request 
continued representation. See Ariz. Rev. Stat. 13-4041(B)-(E) (``[T]he 
supreme court . . . or . . . the presiding judge . . . shall appoint 
counsel to represent the capital defendant in the state postconviction 
relief proceeding . . . . Counsel . . . shall . . . [n]ot previously 
have represented the capital defendant . . . in the trial court . . . 
unless the defendant and counsel expressly request continued 
representation . . . . [T]he capital defendant may . . . waive counsel 
. . . . [i]f . . . knowing and voluntary . . . .''); id. 13-4234(D) 
(``All indigent state prisoners under a capital sentence are entitled 
to the appointment of counsel to represent them in state postconviction 
proceedings. A competent indigent defendant may reject the offer of 
counsel with an understanding of its legal consequence.''); Ariz. R. 
Crim. P. 6.5(a) (``The court must appoint counsel by a written order . 
. . .''); id. 32.4(b) (``After the Supreme Court has affirmed a capital 
defendant's conviction and sentence, it must appoint counsel [for 
postconviction proceedings] . . . . If the presiding judge makes an 
appointment, the court must file a copy of the appointment order with 
the Supreme Court.'').
    In Spears, the Ninth Circuit concluded that the relevant Arizona 
provisions, which did not differ significantly from their current 
versions with respect to the 28 U.S.C. 2261(c)-(d) requirements, 
satisfied this aspect of chapter 154. See 283 F.3d at 1009-12, 1017. I 
agree that this continues to be the case.

C. Counsel Competency

    Subsection (a) of 28 U.S.C. 2265 requires the Attorney General to 
determine whether a State has established a mechanism for the 
appointment of competent postconviction capital counsel and whether it 
provides standards of competency for the appointment of such counsel.
    Analysis of this issue includes consideration of federal and state 
law on counsel competency standards, prior judicial assessment of 
Arizona's standards, and various issues raised in the public comments 
on Arizona's request for certification.

[[Page 20709]]

1. Counsel Competency Standards Under State and Federal Law
    Arizona statutory provisions, in effect since 1996, regarding 
eligibility for appointment as postconviction capital counsel, have 
required that counsel (i) be a member in good standing of the state bar 
for at least five years immediately preceding the appointment, and (ii) 
have practiced in the area of state criminal appeals or postconviction 
proceedings for at least three years immediately preceding the 
appointment. See Ariz. Rev. Stat. 13-4041(C). The statute directs the 
Arizona Supreme Court to maintain a list of eligible attorneys and 
authorizes the Arizona Supreme Court to establish by rule more 
stringent standards of competency. See id. At the time of the decision 
in Spears, there was also a provision--since repealed--allowing the 
Arizona Supreme Court to appoint non-list counsel if no qualified 
counsel were available. See Spears, 283 F.3d at 1009-10.
    The experience requirements of the Arizona statute are similar to 
counsel competency standards that Congress has adopted for federal 
court proceedings in capital cases, including both federal habeas 
corpus review of state capital cases and collateral proceedings under 
28 U.S.C. 2255 in federal capital cases. See 18 U.S.C. 3599. The 
federal standard for post-conviction counsel is not less than five 
years of admission to practice and three years of experience in 
handling felony appeals. Exceptions are allowed as provided in section 
3599(d), which permits the court, for good cause, to appoint other 
attorneys whose background, knowledge, or experience would otherwise 
enable them to properly represent capital defendants. Under the 
regulations implementing chapter 154 that I apply, and as a matter of 
common sense, it is significant that a State has adopted experience 
requirements similar to those that Congress has adopted for federal 
court proceedings, because it is implausible that Congress would have 
deemed inadequate under chapter 154 standards that it has deemed 
adequate for the corresponding federal proceedings. See 78 FR at 58170.
    In addition, the Arizona Supreme Court has adopted a rule, Ariz. R. 
Crim. P. 6.8, that sets more stringent counsel competency standards 
than those appearing in the state statute that emulates the federal 
competency standards. At the time of the appointment considered in 
Spears, the rule required appointed counsel: (i) To have been a member 
in good standing of the Arizona Bar for at least five years immediately 
before appointment; (ii) to have practiced state criminal litigation 
for three years immediately before appointment; (iii) to have 
demonstrated the necessary proficiency and commitment which exemplify 
the quality of representation appropriate for capital cases; (iv) 
within three years immediately before appointment, to have been lead 
counsel in an appeal or postconviction proceeding in a capital case, 
and have prior experience as lead counsel in the appeal of at least 
three felony convictions and at least one postconviction proceeding 
with an evidentiary hearing or have been lead counsel in the appeal of 
at least six felony convictions, including at least two appeals from 
murder convictions, and lead counsel in at least two postconviction 
proceedings with evidentiary hearings; and (v) to have attended and 
successfully completed within one year of appointment at least 12 hours 
of relevant training or educational programs in the area of capital 
defense. See Spears, 283 F.3d at 1010-11. The rule further provided 
that postconviction capital counsel not fully satisfying these 
qualifications may be appointed in exceptional circumstances, but only 
if: (i) The Arizona Supreme Court consents, (ii) the attorney's 
experience, stature, and record establish that the attorney's ability 
significantly exceeds the full suite of qualifications, and (iii) the 
attorney associates with a lawyer who does meet the rule's 
qualifications. See Spears, 283 F.3d at 1010-11.
    The Ninth Circuit concluded in Spears that these counsel competency 
standards were sufficient under chapter 154. See id. at 1013-15. The 
court noted that 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.'' 
Id. at 1013. The court dismissed an objection based on the rule's 
exception allowing the appointment of lawyers not meeting its specific 
criteria, noting that the exception required that such a lawyer 
significantly exceed those criteria and that the lawyer associated with 
one who did meet the rule's qualifications. See id. The court also 
dismissed an objection that the competency standards were insufficient 
because they allowed appointment of lawyers without experience 
defending a capital case, reasoning that ``[n]othing in 28 U.S.C. 
2261(b) or in logic requires that a lawyer must have capital experience 
to be competent.'' Id. Finally, the court dismissed an objection based 
on the statutory allowance of other counsel if qualified counsel were 
unavailable, because the Arizona Supreme Court had bound itself by the 
rule it adopted to appoint counsel meeting the rule's standards. See 
id. at 1012-15.
    Arizona's postconviction capital counsel competency standards have 
changed in some particulars during the period considered in this 
certification. An amendment adopted in 2000--before the decision in 
Spears but after the appointment considered in that case--changed the 
training requirement to successful completion within one year before 
initial appointment of at least six hours of relevant training or 
education in the area of capital defense, and successful completion 
within one year before any later appointment of at least 12 hours of 
relevant training or education in the area of criminal defense. A 
requirement was later added that counsel be familiar with and guided by 
the American Bar Association guidelines for capital defense counsel. 
And an amendment adopted in 2011 modified the detailed litigation 
experience requirements in Rule 6.8, in places where the text had 
required postconviction litigation experience, to require instead trial 
or postconviction litigation experience.
    As modified, Arizona's postconviction counsel competency standards 
have continued to exceed the standards of 18 U.S.C. 3599, which 
Congress has deemed adequate for postconviction counsel in federal 
court proceedings in capital cases. Nevertheless, public comments on 
Arizona's request for certification have questioned the current 
relevance of Spears with respect to Arizona's counsel competency 
standards, focusing mainly on the change in 2011 affecting the 
requirement of postconviction litigation experience. These comments 
were based on the 2011 amendment's addition of the following language 
in Rule 6.8, underlined below in the current text of Rule 6.8(d):

    (d) Post-Conviction Counsel. To be eligible for appointment as 
post-conviction counsel, an attorney must meet the qualifications 
set forth in (a) and the attorney must:
    (1) Within 3 years immediately before the appointment, have been 
lead counsel in a trial in which a death sentence was sought or in 
an appeal or post-conviction proceeding in a case in which a death 
sentence was imposed, and prior experience as lead counsel in the 
appeal of at least three felony convictions and a trial or post-
conviction proceeding with an evidentiary hearing; or
    (2) have been lead counsel in the appeal of at least 6 felony 
convictions, including two appeals from first- or second-degree 
murder convictions, and lead counsel in at least two

[[Page 20710]]

felony trials or post-conviction proceedings with evidentiary 
hearings.

    Nothing in Spears suggests that the modifications of Rule 6.8 since 
1998--and in particular, the rule's allowance of trial or 
postconviction litigation experience--place the rule beyond Arizona's 
``substantial discretion to determine the substance of the competency 
standards.'' Spears, 283 F.3d at 1007. Indeed, in an earlier case, the 
Ninth Circuit considered this very question and concluded that 
postconviction litigation experience is not a necessary element of 
adequate counsel competency standards under chapter 154. See Ashmus v. 
Calderon, 123 F.3d 1199, 1208 (9th Cir. 1997), rev'd on other grounds, 
523 U.S. 740 (1998). Responding to a challenge to California's 
standards because they did not require any familiarity with or 
experience in postconviction litigation--referred to as ``habeas 
corpus'' in California--the court observed that ``[m]any lawyers who 
could competently represent a condemned prisoner would not qualify 
under such a standard. We conclude a state's competency standards need 
not require previous experience in habeas corpus litigation.'' Ashmus, 
123 F.3d at 1208.
2. Counsel Competency in the Department's Regulations
    Postconviction litigation experience is also not an essential 
element of adequate counsel competency standards under the Department's 
interpretation of this aspect of chapter 154. The Department's 
regulations address counsel competency in 28 CFR 26.22(b), which says 
that a State's ``mechanism must provide for appointment of competent 
counsel as defined in State standards of competency for such 
appointments.'' To aid in the determination regarding this requirement, 
section 26.22(b)(1) provides two benchmark criteria and says that a 
State's standards of competency are presumptively adequate if they meet 
or exceed either of the benchmarks. Section 26.22(b)(2) further states 
that competency standards not satisfying the benchmark criteria will be 
deemed adequate only if they otherwise reasonably assure a level of 
proficiency appropriate for State postconviction litigation in capital 
cases.
    In applying section 26.22(b)(2), the benchmark criteria continue to 
function as reference points in the evaluation. State competency 
standards that are likely to result in significantly lower levels of 
proficiency than the benchmarks risk being found inadequate under 
chapter 154, while state competency standards that are likely to result 
in similar or even higher levels of proficiency than the benchmarks 
weigh in favor of a finding of adequacy under chapter 154. See 78 FR at 
58172, 58179.
    The first benchmark criterion, appearing in section 26.22(b)(1)(i), 
is 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.'' The basic standard is subject to the proviso 
that ``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.'' 28 CFR 26.22(b)(1)(i).
    Arizona's standards of competency for appointment, appearing in 
Arizona Rule of Criminal Procedure 6.8(a)-(e), compare favorably to 
section 26.22(b)(1)(i). Section 26.22(b)(1)(i) could be satisfied, for 
example, by a lawyer admitted to the bar for five years who handled one 
or two postconviction proceedings in which the litigation continued 
over three years. It could be satisfied even if the postconviction 
proceedings concerned offenses dissimilar from capital murder offenses 
and even if the postconviction proceedings did not involve evidentiary 
hearings. By comparison, Arizona requires, in addition to five years of 
bar admission and three years of recent criminal litigation practice: 
(i) Demonstrated proficiency and commitment exemplifying the quality of 
representation appropriate for capital cases; (ii) relevant training or 
education in the area of capital defense and other criminal defense; 
(iii) familiarity with the American Bar Association guidelines for 
capital defense counsel; and (iv) recent experience as lead counsel in 
capital litigation with prior experience as lead counsel in at least 
three felony appeals and a trial or postconviction proceeding with an 
evidentiary hearing or experience as lead counsel in at least six 
felony appeals, including two murder conviction appeals, and experience 
as lead counsel in at least two felony trials or postconviction 
proceedings with evidentiary hearings. See Ariz. R. Crim. P. 6.8(a), 
(d).
    The nature and extent of Arizona's standards of competency justify 
the conclusion that they are ``likely to result in even higher levels 
of proficiency,'' 78 FR at 58172, than the benchmark set forth in 28 
CFR 26.22(b)(1)(i). The same was true of earlier iterations of 
Arizona's counsel competency standards, which have evolved in some 
respects as discussed above. It follows that Arizona's capital counsel 
mechanism provides (and has provided) adequate standards of competency 
for appointments. See 28 CFR 26.22(b)(2); see also 78 FR at 58172.
    A number of public comments argued that Arizona's standards are 
inadequate because, following the 2011 amendments to Rule 6.8, they do 
not require postconviction litigation experience. These comments are of 
a piece with those, discussed above, that attempted to distinguish 
Spears on this ground. In relation to section 26.22(b)(2), the 
objection assumes that postconviction litigation experience is 
critical, if not essential, under the Department's rule.
    The comments misunderstand the regulation. As explained above, in 
applying section 26.22(b)(2), the benchmark criteria of section 
26.22(b)(1) serve as reference points. The ``section 26.22(b)(1)(i) 
[benchmark] 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'' and ``[t]he formulation of the benchmark 
. . . does not take issue . . . with Congress's judgments regarding 
counsel competency standards that are likely to be adequate.'' 78 FR at 
58169. The federal statutory competency standards are themselves 
appropriate reference points in assessing the adequacy of corresponding 
state standards, because it is implausible that Congress would have 
deemed inadequate for state postconviction proceedings standards 
similar to those it has deemed adequate for federal postconviction 
proceedings. See 78 FR at 58169-70. Significantly, 18 U.S.C. 3599 does 
not require prior postconviction litigation experience. Rather, it 
deems sufficient having prior experience in the litigation of felony 
appeals. See id. As detailed above, Arizona's standards throughout the 
timeframe of this certification have required substantial experience 
litigating felony appeals.
    Moreover, Arizona's competency standards do not deem appellate 
experience alone to be sufficient but rather also require 
postconviction litigation experience or trial experience. Where that 
element of the standard is satisfied by trial experience rather than 
postconviction experience, it remains relevant to postconviction 
litigation, equipping postconviction counsel to assess the adequacy of 
trial counsel's performance and enhancing his ability to raise in 
postconviction proceedings claims of ineffectiveness of trial counsel 
and other claims relating to the trial

[[Page 20711]]

proceedings. And, as discussed above, Arizona's standards have 
consistently involved other requirements, going beyond both the section 
22.62(b)(1)(i) benchmark and 18 U.S.C. 3599, which are relevant to 
counsel's ability to provide competent representation in capital 
postconviction proceedings.
3. Specific Criticisms
    Some public comments objected that Arizona's qualification 
standards are inadequate because Arizona Rule of Criminal Procedure 
6.8(e) (formerly 6.8(d)) allows the appointment of counsel who do not 
meet some of the qualification standards, an allowance that the 
comments say has been relied on in nearly 25 percent of capital cases 
in Arizona. However, the proviso in Rule 6.8(e) is similar to language 
in 28 CFR 26.22(b)(1)(i) and 18 U.S.C. 3599(d) that allows the court, 
for good cause, to appoint counsel not satisfying the basic standard if 
the attorney's background, knowledge, or experience would otherwise 
enable him to properly represent the defendant. Indeed, the Rule 6.8(e) 
proviso is narrower in some respects than the proviso in the federal 
provisions in that it requires that: (i) The Arizona Supreme Court 
consent to the appointment; (ii) the attorney satisfy certain of Rule 
6.8's requirements, including successful completion of relevant 
training or educational programs; (iii) the attorney's experience, 
stature, and record establish that the attorney's ability significantly 
exceeds the full set of qualification standards; and (iv) the attorney 
associate with an attorney appointed by the court who fully meets the 
standards of Rule 6.8. Ariz. R. Crim. P. 6.8(e)(1)-(4). Put simply, 
Rule 6.8(e) requires more to ensure that appointed counsel will provide 
competent representation than do its federal counterparts, and this has 
been true throughout the timeframe of this certification.
    Some comments argued that Arizona's counsel competency standards 
are insufficient because they lack an appropriate appointing authority, 
adequate training requirements, adequate qualitative evaluation, an 
adequate system for monitoring the performance of counsel following 
appointment, and adequate means to terminate the eligibility of counsel 
whose performance is inadequate or who engages in misconduct. States 
can qualify for chapter 154 certification by establishing capital 
counsel mechanisms that incorporate elements addressing these matters. 
See 78 FR at 58170-71. But neither the terms of chapter 154 and the 
implementing regulations nor judicial precedent support the notion that 
these things are required. Congress intended that States have 
substantial discretion in defining competency standards under chapter 
154. See Spears, 283 F.3d at 1012-13; 78 FR at 58170, 58172. Arizona's 
competency standards are well within the bounds of its discretion, as 
measured against 18 U.S.C. 3599(d), 28 CFR 26.22(b), and the judgment 
in Spears.
    Finally, some public comments argued that Arizona's competency 
standards should be deemed inadequate in practice, alleging that many 
appointed postconviction counsel in Arizona do not perform competently, 
that some had not been considered proficient by a Maricopa County 
selection committee for trial and appellate capital counsel, and that 
the qualification requirements for appointment are not consistently 
enforced. Comments of this nature also pointed to language in the rule 
preamble that observed that a State may fail to establish in practice a 
necessary element of its capital counsel mechanism and to judicial 
decisions (preceding the transfer of the certification function to the 
Attorney General) that concluded that States must comply with their 
capital counsel mechanisms to have the benefit of the chapter 154 
review procedures.
    Arizona disagrees that there are systemic problems relating to the 
competency of the State's appointed postconviction capital counsel. 
Arizona asserts that the critical comments largely focus on 12 
attorneys out of 86, none of whom have been disciplined, removed from 
cases, or judicially determined to be incompetent based on their 
alleged deficiencies. Arizona also asserts that the Arizona Supreme 
Court need not agree with or defer to a committee of defense lawyers in 
Maricopa County and can instead reasonably appoint postconviction 
counsel who satisfy the State's competency standards in its own 
judgment. Furthermore, regarding the comments' presentation of 
criticisms by counsel involved in later stages of capital case 
litigation, Arizona asserts that ``[r]arely . . . is there a capital 
case in which habeas counsel does not raise new claims or fault the 
work of earlier lawyers as flawed and ineffective'' but ``the strategy 
has never succeeded'' with respect to ``any of the 12 attorneys at 
issue.'' Letter from Office of the Arizona Attorney General, Oct. 16, 
2018, at 8-10.
    The critical comments on this issue misunderstand the allocation of 
responsibilities under the current version of chapter 154 and the 
Attorney General's function in making certification decisions.
    Regarding a State's compliance with its own capital mechanism, the 
current statutory scheme does not call for or allow case-specific 
oversight by the Attorney General. As discussed above, following the 
amendments that Congress enacted in 2006, chapter 154 includes only two 
preconditions to its applicability in a particular case: ``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,'' 28 U.S.C. 2261(b)(1); and ``counsel was 
appointed pursuant to that mechanism, petitioner validly waived 
counsel, petitioner retained counsel, or petitioner was found not to be 
indigent,'' id. 2261(b)(2). Only the general certification function 
referenced in section 2261(b)(1), and set forth fully in section 2265, 
is assigned to ``the Attorney General of the United States.'' 
Ascertaining whether counsel was appointed pursuant to the certified 
mechanism, as provided in section 2261(b)(2), 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.'' 78 FR at 58162.
    In this regard, the current law differs from chapter 154 as it was 
prior to the 2006 amendments, when requests to apply the chapter 154 
federal habeas review procedures were presented to federal habeas 
courts in the context of particular cases they were reviewing. Courts 
in that posture considered whether the State had established a 
mechanism satisfying chapter 154, and if so, whether counsel for the 
petitioner in the particular case before the court had been appointed 
in compliance with that mechanism. Consequently, 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, 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 78 FR at 58162-63, 58165; see also, e.g., Tucker, 221 F.3d at 
604-05 (``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.'').
    In contrast, in entertaining a State's request for chapter 154 
certification

[[Page 20712]]

under the current law, 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 an appointment 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. Whether that has 
occurred in any individual case is, under 28 U.S.C. 2261(b)(2), a 
matter to be decided by the federal habeas court to which the case is 
presented, not the Attorney General. See 78 FR at 58162-63, 58165.
    Likewise, the contention that the Attorney General should certify a 
State's mechanism only if he is satisfied with the actual performance 
of postconviction counsel following appointment misconceives the 
Attorney General's role under the current law. Chapter 154 provides 
that the Attorney General ``shall determine'' whether a State ``has 
established a mechanism for the appointment . . . of competent 
counsel'' in state capital postconviction proceedings, and whether the 
State ``provides standards of competency for the appointment of 
counsel'' in such proceedings. 28 U.S.C. 2265(a). The statute does not 
provide that the Attorney General is to inquire into counsel's 
performance following appointment in all or even some cases. Instead, 
it frames its requirements regarding counsel competency as matters 
relating to appointment, contemplating an inquiry into whether a State 
has standards determining eligibility for appointment. See 78 FR at 
58162-63, 58165. This understanding is supported by the Powell 
Committee Report, the original reform proposal from which chapter 154 
derives. 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 [examining] 
the competency of particular counsel.'' 135 Cong. Rec. at 24696. 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.; see 
78 FR at 58162-63, 58165.
    Regarding the ``establishment'' of a mechanism meeting chapter 
154's requirements, 28 U.S.C. 2265(a), the rule's preamble posited that 
the Attorney General might need to address situations involving ``a 
wholesale failure to implement one or more material elements of a 
mechanism described in a State's certification submission, such as when 
a State's submission relying on section 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.'' 78 FR at 58162-63. (The 
section 26.22(b)(1)(ii) benchmark referenced in the example involves a 
state post-appointment monitoring system, see 34 U.S.C. 
60301(e)(2)(E)(i).) One could imagine similar situations in connection 
with other chapter 154 requirements--for example, if a state statute 
authorizes appointment and compensation of postconviction capital 
counsel for indigent prisoners, but the state legislature never 
appropriates any funds that can lawfully be used for that purpose.
    As the preamble discussion makes clear, however, ``a wholesale 
failure'' to implement a necessary element under chapter 154 is an 
extreme situation, and no such situation exists or has existed with 
respect to Arizona's appointment of postconviction counsel. ``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.'' 78 FR at 58163.
4. The Arizona Capital Postconviction Public Defender Office
    Some comments suggested that Arizona's mechanism does not satisfy 
chapter 154's counsel competency requirements because Arizona had, 
between 2007 and 2011, a public postconviction capital counsel agency--
the Arizona Capital Postconviction Public Defender Office--and counsel 
employed by that agency did not have to satisfy the standards of 
competency for appointment under Rule 6.8. See Letter from Martin 
Lieberman, Dec. 27, 2018; Letter from AFPD, Feb. 22, 2018, at 38-41. 
This agency, which the commenters describe as inadequately funded and 
ultimately unsuccessful, was created by legislation enacted in 2006 
that provided for the agency's termination on July 1, 2011. 2006 Ariz. 
Legis. Serv. Ch. 369, sec. 3, 4, 6. During the limited period of its 
existence, the agency did not supplant Arizona's general capital 
counsel mechanism, which continued to provide counsel for 
postconviction representation outside of the few cases handled by the 
agency. The comments relating to the agency do not go to the question 
whether Arizona had a capital counsel mechanism adequate under chapter 
154 before the agency's establishment or after its termination, but at 
most to whether there was an intermediate period in 2007 to 2011 in 
which it did not.
    With respect to that period, the comments amount to a claim that 
agency counsel were not appointed pursuant to the mechanism I now 
certify in the few cases the agency handled, because the agency counsel 
were not required to satisfy state standards of competency. Cf. Tucker, 
221 F.3d at 604. Under the current formulation of chapter 154, such a 
claim could be presented to the federal habeas court under 28 U.S.C. 
2261(b)(2) in the cases in which the agency provided postconviction 
representation and, if found to have merit, it could provide a basis 
for finding chapter 154's review procedures inapplicable in those 
cases. It does not have implications outside of those cases or affect 
my determination that Arizona has had a mechanism for appointment of 
postconviction counsel satisfying chapter 154's requirements 
continuously since May 19, 1998.
    I also conclude that Arizona has had a capital counsel mechanism 
adequate under chapter 154 continuously since May 19, 1998, because 
Arizona's capital counsel mechanism in the period between 2007 and 2011 
comprised its general mechanism established in 1998 together with the 
provision for representation by the public agency. Arizona law required 
that the agency's Director meet or exceed the Rule 6.8 competency 
standards. 2006 Ariz. Legis. Serv. Ch. 369, sec. 7. The Director in 
turn hired experienced attorneys who operated under his supervision. 
See Letter from Martin Lieberman, Apr. 5, 2009, at 3. With respect to 
the agency's staff counsel, hiring and employment by a dedicated office 
whose function is capital postconviction representation, under a 
Director having those qualifications, is a reasonable means of ensuring 
proficiency appropriate for such representation. I therefore find that 
this aspect of Arizona's mechanism satisfies section 26.22(b)(2).
    The comments' criticisms relating to the public agency's funding do 
not impugn this conclusion. Nor do they show a failure by Arizona to 
satisfy chapter 154's other requirements,

[[Page 20713]]

relating to compensation and payment of reasonable litigation expenses, 
which are fully discussed in the ensuing portions of this notice. 
Rather, the information in the comments indicates that the agency was 
generally able to limit its caseload to a level compatible with its 
resources. Its attorneys were compensated by salary, which is allowed 
under chapter 154 for public defender personnel. See Spears, 283 F.3d 
at 1010 (requirement regarding hourly rate of compensation inapplicable 
to counsel in publicly funded offices); 78 FR at 58180 (such counsel 
may be compensated by salary). Litigation expenses were paid from the 
agency's budget with the possibility of requesting additional funds 
from the court. The comments state that a budgetary shortfall in 2009 
resulted in delay in the processing of two cases. See Decl. of Martin 
Lieberman, Dec. 26, 2017, at 2-4; Letter from Martin Lieberman, Apr. 5, 
2009, at 3-4. But chapter 154 does not condition certification on all 
cases being processed without delay.
5. International Issues
    Beyond the general comments regarding Arizona's counsel competency 
standards, the Government of Mexico submitted a comment asserting that 
the Attorney General should deny certification because Arizona has no 
provision ensuring that foreign national defendants receive competent 
representation. See Letter from Amb. Jos[eacute] Antonio Zabalgoitia, 
Jan. 5, 2017. The comment states that attorneys representing foreign 
nationals need expertise specific to such clients, including expertise 
regarding international law. See id. at 2-3. The comment further 
asserts that foreign nationals present other special needs affecting 
the requirements for competent representation, including defense teams 
that can communicate in the defendant's native language, culturally 
competent experts who can understand the defendant's cultural 
background and work with him and his family in appropriate ways, and 
foreign travel to investigate the defendant's circumstances and life in 
his home country. See id.
    The comment does not provide a basis for denying certification. 
Prisoners under sentence of death could be divided into many 
subcategories, each of which might benefit from representation by 
lawyers with special expertise. But chapter 154 does not require that a 
State define special competency standards for lawyers with respect to 
each such class. Instead, it provides that a State must provide 
standards of competency for appointment. See 28 U.S.C. 2265(a)(1)(C).
    The comment provides no persuasive reason to believe that lawyers 
satisfying Arizona's standards for appointment will be unable to handle 
competently any legal issues involved in representing foreign clients. 
The counsel competency standards Congress has enacted for federal court 
proceedings in capital cases, 18 U.S.C. 3599, impose no special 
requirements for cases involving foreign defendants. It is implausible 
that Congress intended to impose such requirements with respect to 
state postconviction proceedings under chapter 154. Likewise, the 
implementing rule for chapter 154 does not require special counsel 
competency standards for cases involving foreign defendants. Neither of 
the section 26.22(b)(1) benchmark criteria require special competency 
standards for counsel representing foreign clients, and there is no 
basis for reading such a requirement into the section 26.22(b)(2) 
authorization of standards that otherwise reasonably assure a level of 
proficiency appropriate for state capital postconviction litigation.
    Other matters raised in this comment--relating to language skills, 
culturally competent experts, and foreign travel--go to the question 
whether Arizona provides for payment of reasonable litigation expenses. 
I answer that question in the affirmative for reasons discussed in Part 
II.E of this notice.

D. Compensation of Counsel

    Chapter 154 requires the Attorney General to determine whether a 
state has established a mechanism for the compensation of appointed 
postconviction capital counsel. 28 U.S.C. 2265(a). Throughout the 
period considered in this certification, Arizona Revised Statutes 
section 13-4041 has provided that ``[u]nless counsel is employed by a 
publicly funded office, counsel appointed to represent a capital 
defendant in state postconviction relief proceedings shall be paid an 
hourly rate of not to exceed one hundred dollars per hour.'' Ariz. Rev. 
Stat. 13-4041(F). The statute has also consistently required the court 
(or the court's designee) to approve reasonable fees and costs, and has 
provided for recourse through a special action with the Arizona Supreme 
Court where the attorney believes that the court has set an 
unreasonably low hourly rate or the court found that the hours the 
attorney spent were unreasonable. See Ariz. Rev. Stat. 13-4041(G). The 
statute formerly required that counsel establish good cause to receive 
compensation for more than 200 hours of work--amounting to a 
presumptive $20,000 cap on compensation at the maximum hourly rate of 
$100--but legislation enacted in 2013 eliminated this limitation. See 
2013 Ariz. Legis. Serv. Ch. 94.
1. Judicial Assessment of Compensation Under Chapter 154
    In Spears, the Ninth Circuit ``conclude[d] that Arizona's 
compensation mechanism complied with Chapter 154.'' 283 F.3d at 1015. 
The court rejected petitioner's argument that the then-existing 200-
hour limit was ``unduly burdensome to appointed counsel,'' reasoning 
that ``to receive compensation for hours beyond the threshold, the 
lawyer need[ ] only to establish that he or she worked more than 200 
hours on the case and that the time expended was reasonable.'' Id. The 
court observed that ``[n]othing in Chapter 154 suggests that the 
mechanism to ensure compensation must be a blank check. The statute 
simply requires that the appointment mechanism reasonably compensate 
counsel.'' Id. Consequently, consistent with chapter 154, ``a state can 
require an appointed lawyer to account for the reasonableness of the 
number of hours worked before it compensates that lawyer.'' Id.
    Considering the State's submissions and the public comments 
thereon, there appears to be agreement that the Arizona Supreme Court 
consistently orders compensation at the maximum hourly rate of $100. 
The comments noted, however, that the $100 hourly rate has not been 
changed since 1998, during which time its real value has been eroded by 
inflation. The comments pointed to recommendations that the hourly rate 
be increased, with $125 sometimes mentioned as a more appropriate 
figure.
    As an initial matter, the reduction of the value of $100 by 
inflation during the period of the certification does not imply that it 
is now an inadequate maximum hourly rate. A State may establish a rate 
of compensation high enough that it is adequate at the outset and 
continues to be adequate even after inflation's erosion of its real 
value over time. The hourly rate established by Arizona, in particular, 
continues to be adequate under chapter 154.
    Simple computation allows a general assessment of the remuneration 
postconviction capital counsel may be afforded in Arizona. Assuming 
that a regular work week is 40 hours, and that a regular work year 
consists of about 50 weeks, the number of hours in a full year of work 
is 2000. Applying

[[Page 20714]]

Arizona's maximum hourly rate of $100, postconviction counsel would 
receive $4,000 for a week of full-time work on a capital case, and 
would receive $200,000 for a year's work.
    Judicial precedent finding state compensation inadequate under 
chapter 154 has involved much more restrictive compensation provisions 
than Arizona's. In Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000), the 
Fourth Circuit concluded that Maryland's scheme failed to satisfy 
chapter 154. Id. at 287. Maryland at the time compensated 
postconviction capital counsel $30 per hour for out-of-court time and 
$35 per hour for in-court time, subject to an overall cap of $12,500. 
Id. at 285. Examining attorney overhead costs and the effects of the 
hourly rates and fee cap, the court concluded that accepting 
postconviction capital cases resulted in a net loss to attorneys. Id. 
The court stated that ``[a] compensation system that results in 
substantial losses to the appointed attorney or his firm simply cannot 
be deemed adequate.'' Id. at 285-86.
    The compensation scheme at issue in Baker bears no resemblance to 
Arizona's system, which, as discussed above, may compensate 
postconviction capital counsel $200,000 for a year's work (reckoned as 
2,000 hours). Even assuming overhead costs of 40% of revenue for 
private counsel, as a commenter suggested, the net authorized income 
for a year of postconviction work in Arizona would be $120,000 (= 
$200,000 - 40% x $200,000). This is far from the concern reflected in 
Baker regarding attorneys having to operate at a substantial loss. See 
220 F.3d at 285-86; see also Mata v. Johnson, 99 F.3d 1261, 1266 (5th 
Cir. 1996) (finding that Texas's mechanism, which capped compensation 
at $7,500 and expenses at $2,500, satisfied chapter 154 for those 
elements), vacated in part on other grounds, 105 F.3d 209 (5th Cir. 
1997).
    Arizona's submissions provided extensive information about how 
appointed counsel are compensated in practice. Arizona's 2017 
application letter explained that ``[c]ounsel employed by publicly-
funded offices are compensated by salary'' and that ``[a]ppointed 
private counsel are compensated at an hourly rate of up to $100 per 
hour,'' as provided by statute. Letter from Office of the Arizona 
Attorney General, Nov. 27, 2017, at 2. The application further reported 
that ``Arizona regularly spends well over $200,000 in attorney fees and 
litigation costs in capital post-conviction cases, and has spent over 
$500,000 in more than one case.'' Id. In 2018, Arizona provided 
additional information and documentation, including identifying a 
number of cases in which the State paid over $500,000 in attorney fees 
and litigation costs. Letter from Office of the Arizona Attorney 
General, Oct. 16, 2018. Arizona reported that the average compensation 
of postconviction capital counsel in Maricopa County exceeds $165,000, 
that the average compensation in Pima County exceeds $110,000, and that 
even smaller counties spend significantly more than $20,000 per case.
    Public comments on Arizona's submissions state that Arizona's 
examples and data are variously irrelevant, ambiguous, 
unrepresentative, misleading, incomplete, and inaccurate; that the 
average and high-end case figures mask or highlight variations among 
counties and cases, which may involve relatively low levels of 
compensation; and that use of the median instead of the mean yields 
lower representative figures.
    I do not find it necessary to resolve the conflicting factual 
claims because I find Arizona's compensation mechanism to be adequate 
under chapter 154, as the Ninth Circuit concluded in Spears, on 
uncontroverted grounds discussed above, and for additional reasons I 
discuss below in connection with the Department's regulations.
2. Counsel Compensation in the Department's Regulations
    Turning to the implementing regulations for chapter 154, 28 CFR 
26.22(c) provides that a State's ``mechanism must provide for 
compensation of appointed counsel.'' The regulation provides four 
benchmark criteria and says that a State's provision for compensation 
is presumptively adequate if it is comparable to or exceeds any of the 
benchmarks. The benchmarks are: (i) Compensation of appointed capital 
federal habeas counsel; (ii) compensation of retained state 
postconviction capital counsel meeting state standards of competency; 
(iii) compensation of appointed state capital trial or appellate 
counsel; and (iv) compensation of state attorneys in state capital 
postconviction proceedings, taking account of relative overhead costs. 
See 28 CFR 26.22(c)(1).
    The rule further states in section 26.22(c)(2) that provisions for 
compensation not satisfying the benchmark criteria 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 section 26.22(b). See 78 FR at 
58172-73, 58179-80 (further explaining the regulatory provisions). The 
rule preamble explains that section 26.22(c)(2) recognizes that 
compensation provisions ``have been deemed adequate for purposes of 
chapter 154 . . . independent of any comparison to the benchmarks in 
paragraph (c)(1),'' citing the Spears decision and Arizona's hourly 
rate of up to $100 by way of illustration. 78 FR at 58180.
    Arizona's 2017 letter says that postconviction capital 
representation is provided by two classes of lawyers who are 
compensated differently. See Letter from Office of the Arizona Attorney 
General, Nov. 27, 2017, at 2. This is consistent with the rule. See 78 
FR at 58180 (``A State may . . . provide for compensation of different 
counsel or classes of counsel in conformity with different 
standards.'').
    One of the classes is ``[c]ounsel employed by publicly-funded 
offices'' who ``are compensated by salary.'' Letter from Office of the 
Arizona Attorney General, Nov. 27, 2017, at 2. This is adequate under 
section 26.22(c)(2); such personnel do not require financial incentives 
beyond their salaries to provide representation in capital 
postconviction proceedings. See 78 FR at 58180 (noting, in relation to 
section 26.22(c)(2), that ``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'').
    With respect to private counsel, the information I have received 
from the State and public comments is insufficient to enable me to 
determine whether Arizona's mechanism for compensation has satisfied 
the benchmarks of section 26.22(c)(1) because it does not include 
comparative information for the benchmarks' reference points--such as 
compensation of trial and appellate counsel, and compensation of 
attorneys representing the State in postconviction proceedings--for all 
parts of the State throughout the period of the certification. I 
accordingly consider whether the mechanism is reasonably designed to 
ensure the availability for appointment of counsel meeting the State's 
standards of competency for appointment, as provided in section 
26.22(c)(2).
    Some comments maintained that Arizona's provision for compensation 
is inadequate because between 1998 and

[[Page 20715]]

2013 there was a presumptive limit of 200 compensable hours, implying a 
$20,000 limit on total compensation at the maximum $100 hourly rate. 
That presumptive limit is consistent with the rule, however, because 
there were means for authorizing compensation beyond the presumptive 
maximum. Indeed, the rule preamble cited the Ninth Circuit's approval 
in Spears of Arizona's presumptive 200-hour limit because, as the Ninth 
Circuit observed, compensation was available for work beyond that limit 
if reasonable. 78 FR at 58180.
    Variations in compensation among cases and counties, which were 
noted in the State's submissions and the public comments, do not call 
into question the adequacy of Arizona's compensation mechanism under 
the rule's standard. It would be unreasonable to expect attorneys' 
compensation to be similar in all cases, because different cases 
require different amounts of work, depending on their particular issues 
and characteristics. Aggregate and average compensation may vary in 
different geographic areas because of differences among counties in the 
nature and number of capital cases or other factors. Whatever the 
reasons for such variations, Arizona's mechanism has authorized and 
does authorize, on a statewide basis, compensation of counsel at a rate 
of up to $100 an hour, with no inflexible limit on the number of hours 
that can be compensated. Chapter 154 does not require greater statewide 
uniformity in compensation and there are no requirements for 
certification beyond those that chapter 154 states. See 28 U.S.C. 
2265(a)(3).
    Finally, some commenters argued that section 26.22(c)(2) is not 
satisfied on the ground that Arizona's $100 hourly rate has been 
inadequate to attract counsel who perform adequately in practice. As 
discussed above, the State disputes the commenters' claims of systemic 
inadequacies in the performance of counsel, and reviewing counsel's 
performance in particular cases is not among the Attorney General's 
functions under chapter 154. Moreover, the criterion under section 
26.22(c)(2) is whether the State's provision for compensation is 
``reasonably designed to ensure the availability for appointment of 
counsel who meet State standards of competency sufficient under 
[section 26.22(b)],'' which refers to the standards for appointment 
under the State's capital counsel mechanism. Arizona has been able to 
recruit attorneys who were found by the appointing authority to satisfy 
these standards. Commenters maintain that such counsel have been 
appointed only after excessive delays, but timeliness of appointment is 
a different issue that I discuss separately below.
    Accordingly, I find that Arizona's provision for compensation of 
appointed postconviction capital counsel satisfies the requirements of 
chapter 154.

E. Payment of Reasonable Litigation Expenses

    Chapter 154 requires the Attorney General to determine whether a 
State has established a mechanism for payment of reasonable litigation 
expenses of appointed postconviction capital counsel. 28 U.S.C. 
2265(a). Arizona's mechanism provides for the payment of reasonable 
litigation expenses in Arizona Revised Statutes sections 13-4041(G), 
(I), and 13-4013(B).
    In Spears, the Ninth Circuit found that Arizona's provisions for 
payment of reasonable litigation expenses--which have not changed in 
the intervening years in any material respect-- were adequate under 
chapter 154. See 283 F.3d at 1016. The Ninth Circuit reasoned that 
chapter 154 requires ``only that the state mechanism provide for the 
payment of reasonable litigation expenses'' and ``assumes that a state 
can assess reasonableness as part of its process.'' Id. Nothing has 
transpired since Spears that calls this conclusion into question, 
notwithstanding comments claiming that expense payments in Arizona are 
too low and that the level of such payments varies among cases and in 
different parts of the State. Chapter 154 has not at any time required 
payment of any particular quantum of expenses and it has not provided 
that a State lacks a qualifying mechanism if different amounts of 
expenses are found to be reasonable in different areas or cases. 
Differences among cases may result from different needs for 
investigation, expert witnesses, and other resources, depending on the 
characteristics of the individual case. Differences among counties may 
result from differences in the nature and number of capital cases, 
differences in cost-of-living and wages, and other factors. Whatever 
the reasons for such variations, Arizona Revised Statutes sections 13-
4041(G), (I), and 13-4013(B) provide for payment of reasonable 
litigation expenses on a statewide basis, which satisfies chapter 154's 
requirement. Spears did not go beyond chapter 154 to require more 
definite criteria or greater statewide uniformity in the payment of 
litigation expenses, and adding to chapter 154's express requirements 
is now barred. See 28 U.S.C. 2265(a)(3).
    A frequent point of criticism in the public comments was that 
Arizona's provisions regarding payment of litigation expenses include 
both mandatory and permissive language. Compare Ariz. Rev. Stat. 13-
4041(G) (court ``shall'' review and approve all reasonable fees and 
costs) with id. 13-4041(I) (court ``may'' authorize additional monies 
to pay for reasonably necessary investigative and expert services). The 
same variation in language existed when the Ninth Circuit decided 
Spears, however, and the court understood these provisions to 
``requir[e] the payment of reasonable costs, as well as reasonable fees 
to investigators and experts, whenever the court deemed them reasonably 
necessary.'' 283 F.3d at 1016. Chapter 154 requires a mechanism for 
payment of reasonable litigation expenses but does not say that all of 
a State's provisions relating to the matter must use facially mandatory 
language. Notably, in the same act that added chapter 154 to title 28 
of the United States Code, Congress changed the wording of the 
provision for payment of reasonably necessary litigation expenses in 
federal capital cases, and in federal habeas corpus review of state 
capital cases, from ``shall'' to ``may.'' See Ayestas v. Davis, 138 S. 
Ct. 1080, 1087, 1094 (2018) (regarding 18 U.S.C. 3599(f), formerly 
designated 21 U.S.C. 848(q)(9)). It is implausible that Congress, in 
chapter 154, would have rejected the propriety of the term ``may'' 
while at the same time using the term ``may'' in a nearby, related 
provision. Arizona denies that the variation in language is 
significant, and it has not been shown that Arizona courts interpret 
the term ``may'' to afford boundless discretion to refuse to pay for 
expenses that are reasonably necessary.
    Consequently, I find no basis for doubting the continuing validity 
of the Ninth Circuit's determination in Spears that Arizona has a 
mechanism for payment of reasonable litigation expenses of 
postconviction capital counsel as required by chapter 154. Nor do the 
Department's regulations provide any basis for a contrary conclusion. 
Following the statutory requirement, paragraph (d) of 28 CFR 26.22 
provides that a state capital counsel mechanism must provide for 
payment of reasonable litigation expenses of appointed counsel. The 
paragraph provides a nonexhaustive list of types of litigation 
expenses. It further states that presumptive limits on payment are 
allowed but only if means are authorized for payment of necessary 
expenses above such limits.

[[Page 20716]]

    Arizona has explained that it ``provides for payment of all 
reasonable litigation expenses, such as for investigative and expert 
assistance, as required by 28 U.S.C. 2265(a)(1)(A) and 28 CFR 
26.22(d).'' Letter from Office of the Arizona Attorney General, Nov. 
27, 2017, at 2. This is correct. Arizona's provisions for payment of 
reasonable litigation expenses do not exclude payment for any types of 
reasonable litigation expenses, including those listed in section 
26.22(d), and do not have presumptive limits on the amount of payment. 
Ariz. Rev. Stat. 13-4041(G), (I); id. 13-4013(B).
    Some comments objected that judges have denied postconviction 
counsel's requests for payment of litigation expenses in some cases, 
that county expense systems may fail to provide adequate resources, and 
that there are no more definite standards to ensure statewide 
uniformity in payment of litigation expenses. However, the rule does 
not require state judges or other authorities to agree in all instances 
that the litigation expenses counsel wants are reasonably necessary, 
and it does not authorize or require the Attorney General to second-
guess their determinations.
    Rather, it is sufficient under the rule if the capital counsel 
mechanism provides for payment of reasonable litigation expenses in 
general terms. In this connection, the rule preamble observed that the 
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 preamble noted that 
there was no persuasive reason why 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 commenters 
on the rule. The rulemaking cited the Ninth Circuit's reasoning in 
Spears, discussed above, that 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.' '' 78 FR at 58173 (quoting 
Spears, 283 F.3d at 1016).
    The submissions concerning Arizona's current request for 
certification provided extensive information about the practical 
operation of the State's mechanism for payment of reasonable litigation 
expenses. Arizona's submissions pointed to a number of cases in which 
payment of fees and litigation expenses exceeded $500,000, and advised 
that the average reimbursement for litigation expenses was over 
$140,000 per case in Maricopa County and over $50,000 per case in Pima 
County. The rejoinder in public comments was similar to that concerning 
compensation, characterizing Arizona's examples and data as variously 
irrelevant, ambiguous, unrepresentative, misleading, incomplete, and 
inaccurate; stating that the average and high-end case figures mask or 
highlight variations among counties and cases, which may involve 
relatively low levels of expense payment; and that use of the median 
instead of the mean yields lower representative figures.
    As with compensation, I find it unnecessary to resolve these 
factual disputes regarding the amounts attorneys have received for 
litigation expenses, and how these payments have varied among different 
cases and different parts of the State. For the reasons explained 
above, Arizona's mechanism provides for the payment of reasonable 
litigation expenses in a manner that satisfies chapter 154's 
requirements.

F. Timeliness of Appointment

    Chapter 154 does not specify a timeline for appointment of 
postconviction capital counsel. Nevertheless, the issue of timeliness 
has come up in judicial decisions, in the Department's regulations, and 
in the public comments on Arizona's request for certification.
1. Historical Assessment of Timeliness
    In Spears, the court acknowledged that ``the text of the statute 
does not specify how soon after affirmance of a defendant's conviction 
and sentence the state must extend its offer of post-conviction 
counsel.'' 283 F.3d at 1016. Nevertheless, the court believed that a 
requirement to offer counsel ``expeditiously'' was implicit in the 
context of chapter 154 and its legislative history. Id. The court then 
concluded that this implicit requirement was satisfied by an Arizona 
statutory provision, existing at the time of the appointment considered 
in that case, that required appointment of postconviction capital 
counsel within 15 days of the filing of the notice of postconviction 
relief. See 283 F.3d at 1016-18.
    Arizona law no longer requires appointment of postconviction 
counsel within a 15-day period. The change could lead some to question 
whether Arizona is now in compliance with the implicit timeliness 
requirement discerned by the court in Spears. Chapter 154 has since 
been amended, however, to specify 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). Hence, 
whether Arizona's statutes in their current form would satisfy the 
implicit timeliness requirement discerned in Spears is irrelevant to 
whether Arizona's capital counsel mechanism satisfies chapter 154's 
current requirements.
    The court in Spears also concluded that Arizona was not entitled to 
the benefit of chapter 154's expedited review procedures in the case 
before it, notwithstanding its determination that Arizona had in place 
a system meeting the chapter 154 criteria, because ``a state must 
appoint counsel in compliance with its own system before a federal 
court will enforce the Chapter 154 time line on its behalf in a 
particular case.'' 283 F.3d at 1018. The court noted that counsel had 
not been appointed within the then-existing 15-day timeframe under 
Arizona's statutes. Id. at 1018-19. As discussed above, however, the 
current provisions of chapter 154 assign the determination whether a 
State has appointed counsel in compliance with its own system in a 
particular case to the federal habeas court presented with the case. It 
is not part of the Attorney General's determination whether the State 
has established a capital counsel mechanism satisfying the requirements 
of chapter 154. See 28 U.S.C. 2261(b); 78 FR at 58166. Hence, this 
aspect of Spears is also not relevant to my determination whether 
Arizona's capital counsel mechanism satisfies chapter 154's current 
requirements.
2. Timeliness Under Current Chapter 154
    The regulations implementing chapter 154 define the term 
``appointment'' to include a timeliness requirement. See 28 CFR 26.21. 
Arizona's mechanism satisfies this requirement.
    Specifically, section 26.21 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.'' Id. The regulatory interpretation of 
``appointment'' is related to chapter 154's time limit for applying for 
federal habeas corpus review. As provided in 28 U.S.C. 2263, an 
application for habeas corpus under chapter 154 must be filed not later 
than 180 days from the date the conviction and sentence become final on 
direct

[[Page 20717]]

review, subject to tolling (i) during the pendency of a petition for 
certiorari in the Supreme Court, (ii) ``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,'' and 
(iii) for an additional period not exceeding 30 days on a showing of 
good cause. 28 U.S.C. 2263. The second ground for tolling allows the 
180-day time limit to run until a state postconviction petition is 
filed and allows it to resume upon the conclusion of state 
postconviction proceedings. This effectively limits the time available 
both to initiate state postconviction proceedings and to file for 
federal habeas corpus review thereafter.
    Against this background, the Department's rulemaking reflected a 
concern that appointment of counsel may not be meaningful unless it is 
reasonably prompt. For if it is delayed, little or no time may remain 
for the prisoner to file a petition for state postconviction review 
with the assistance of counsel, and little or no time may remain for 
the prisoner to apply for federal habeas corpus review after the 
conclusion of state postconviction review. The rule accordingly 
provides that appointment in the context of chapter 154 means 
appointment 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 related claims. See 78 FR 58165-
67, 58176-77.
    Assessment of this issue in relation to Arizona's capital counsel 
mechanism requires consideration of its procedures relating to 
applications for postconviction relief and appointment of counsel. In a 
capital case, the time limit for filing a state postconviction petition 
begins to run with the filing of a notice of postconviction relief. The 
clerk of the Arizona Supreme Court files the notice after the court 
issues its mandate affirming the conviction and sentence. The mandate 
is not issued until the conclusion of any proceedings for certiorari 
from the U.S. Supreme Court. See Ariz. Rev. Stat. 13-4243(D); Ariz. R. 
Crim. P. 31.22(c), 32.4(a)(2)(B), (c)(1); see also Spears, 283 F.3d at 
1011-12, 1018.
    The timing rules concerning appointment of postconviction capital 
counsel have existed in three forms during the period considered in 
this certification. Initially, the rules required appointment of 
counsel within 15 days from the filing of the notice of postconviction 
relief. An amendment preceding the Spears decision removed the 15-day 
time frame. The current rules direct appointment of counsel after the 
Arizona Supreme Court's affirmance of the conviction and sentence. See 
Ariz. Rev. Stat. 13-4041(B); Ariz. R. Crim. P. 32.4(b)(1); Spears, 283 
F.3d at 1000, 1012, 1018.
    Thus, Arizona law currently allows for the appointment of counsel 
as soon as the Arizona Supreme Court affirms the conviction and 
sentence. This precedes the issuance of the Arizona Supreme Court's 
mandate and the filing of the notice of postconviction relief, which 
are deferred pending any petition for certiorari from the U.S. Supreme 
Court. If suitable counsel is not available for appointment at that 
time, the Arizona Supreme Court may avoid prejudice to the defendant 
with respect to the time available for seeking state postconviction 
relief by delaying the notice of postconviction relief or staying the 
time limit for applying for postconviction relief. See Letter from the 
Office of the Arizona Attorney General, Oct. 16, 2018, at 10-11. The 
materials submitted by the State and public commenters include numerous 
Arizona Supreme Court orders that show that the time limit for seeking 
state postconviction relief was suspended pending the appointment of 
counsel.
    Whether this process results in timely appointment of counsel, as 
defined in the Department's regulations, presents different issues in 
relation to state postconviction filing and federal habeas filing. I 
discuss these matters separately.
3. State Postconviction Filing
    Comments on the issue of timeliness in appointment agree that any 
delays in the appointment of counsel in Arizona do not prevent timely 
filing of state postconviction petitions. See Letter from AFPD, Nov. 5, 
2018, at 16-17 (commenter ``agrees that Arizona's delays in appointing 
postconviction counsel will not prevent a prisoner from filing a first 
state petition for postconviction review''); Letter from AFPD, Jan. 7, 
2019, at 27 (commenter ``does not generally disagree'' that ``delays in 
appointing postconviction counsel will not prevent a prisoner from 
filing a timely first state petition for postconviction review''). The 
comments nevertheless contend that ``Arizona's customary practice'' of 
appointing counsel in a manner allowing the timely filing of state 
postconviction petitions ``cannot substitute for a valid statewide 
mechanism that mandates timely appointment'' because ``[a] practice can 
change at any time and is not governed by rule or statute.'' Id. at 27-
28 n.15.
    Chapter 154 does not require that the elements of a qualifying 
capital counsel mechanism be adopted or articulated in any particular 
manner or form. Chapter 154 originally included language that made the 
chapter applicable if a State established a qualifying capital counsel 
mechanism by ``statute'' or by ``rule of its court of last resort.'' 
See 28 U.S.C. 2261(b), 2265(a) (1996). In two decisions, the Ninth 
Circuit deemed California's capital counsel mechanism inadequate under 
chapter 154 because it was not fully articulated in a ``statute'' or 
``rule,'' dismissing as insufficient other ``policy,'' ``practice,'' or 
``compliance in practice'' by the California Supreme Court. See Ashmus 
v. Woodford, 202 F.3d 1160, 1165-66, 1169 (9th Cir. 2000); Ashmus v. 
Calderon, 123 F.3d at 1207-08. Congress reacted by amending chapter 154 
to eliminate the statute-or-rule language. See Public Law 109-177, sec. 
507, 120 Stat. at 250-51; see also 152 Cong. Rec. at 2446 (remarks of 
Sen. Kyl) (``The `statute or rule of court' language construed so 
severely by Ashmus is removed, allowing the States flexibility on how 
to establish the mechanism within the State's judicial structure.''); 
78 FR at 58164-65; 73 FR at 75332, 75334. Consequently, conceding that 
Arizona appoints counsel in a manner that allows prisoners to file 
timely state postconviction petitions, but characterizing this aspect 
of Arizona's system as a ``customary practice,'' does not negate the 
State's satisfaction of chapter 154's requirements.
    Moreover, the comment that customary practices can change at any 
time does not establish a material difference from rules and statutes, 
because rules and statutes can also change over time, by action of the 
rulemaking authority or the legislature. If such a change occurs, its 
significance may be addressed in a future request for recertification 
of the State's mechanism. See 78 FR at 58181; 28 CFR 26.23(d). 
Regardless of the form of the relevant policy, speculation that a 
future change in Arizona's mechanism will deny prisoners adequate time 
to seek state postconviction review because of delay in the appointment 
of counsel does not bear on my determination that Arizona's existing 
mechanism is consistent with chapter 154's requirements as interpreted 
in the Department's regulations. Arizona has in fact ``established a 
mechanism for the appointment . . . of . . . counsel,'' 28 U.S.C. 
2265(a)(1)(A), ``in a manner that is reasonably timely in light of the 
time limitation[] for seeking State . . . postconviction review,'' 28 
CFR 26.21.

[[Page 20718]]

4. Federal Habeas Filing
    I next consider the question of timely appointment of counsel with 
respect to the time available for seeking state and federal 
postconviction review under 28 U.S.C. 2263.
    In assessing this question, I start with the Ninth Circuit's 
decision in Isley v. Arizona Department of Corrections, 383 F.3d 1054 
(9th Cir. 2004). In that case, the court considered a similar issue in 
relation to the general time limit for federal habeas filing under 28 
U.S.C. 2244(d). Section 2244(d) parallels 28 U.S.C. 2263 in relevant 
respects, providing that its limitation period normally starts to run 
at the conclusion of direct review, but is tolled during the time 
period in which ``a properly filed application for State post-
conviction or other collateral review . . . is pending.'' 28 U.S.C. 
2244(d)(2). The question presented was whether the relevant application 
for state postconviction review is the defendant's ``notice of post-
conviction relief'' or his later-filed petition for post-conviction 
relief. See Isley, 383 F.3d at 1055-56.
    The court concluded that the earlier notice of postconviction 
relief was the relevant filing that stopped the clock. The court 
reasoned that the notice of postconviction relief is ``a critical 
stage'' that ``set[s] in motion'' Arizona's postconviction review 
mechanism and begins the running of the time limit for filing the 
formal petition for postconviction relief. Id. at 1055-56. 
Consequently, ``Isley's state petition was `pending' within the meaning 
of 28 U.S.C. 2244(d)(2),'' and he was entitled to tolling, from the 
date the notice of postconviction relief was filed. Id at 1056.
    In capital cases, Arizona does not place on the defendant the 
burden of filing the notice of postconviction relief that initiates 
postconviction review proceedings. Instead, it directs the clerk of the 
Arizona Supreme Court to file the notice of postconviction relief once 
the Arizona Supreme Court has issued its mandate affirming the 
conviction and sentence in capital cases. See Ariz. Rev. Stat. 13-
4041(B), 13-4234(D). It is this filing that commences the state 
postconviction proceedings and tolls the federal habeas time limit. See 
Isley, 383 F.3d at 1056.
    The Isley understanding of the trigger for tolling the federal 
habeas time limit is logical whether the applicable time limit is 
provided by section 2244(d) or section 2263. It resolves the concern 
that delay in the appointment of counsel, and consequent delay in 
filing a clock-stopping formal petition, will result in the erosion or 
expiration of the time to seek federal habeas relief, which would bring 
into play the timeliness concerns underlying the definition of 
appointment in 28 CFR 26.21.
    As noted above, comments on this issue ``agree that Arizona's 
delays in appointing postconviction counsel will not prevent a prisoner 
from filing a first state petition for postconviction relief,'' but 
they question whether the same is true with respect to filing a federal 
habeas petition. Letter from AFPD, Nov. 5, 2018, at 16-18. The 
underlying concern is that, under Isley, ``the Notice tolls the 
[federal] statute of limitations'' but ``it is unclear whether it does 
the same under Chapter 154.'' Letter from AFPD, Feb. 22, 2018, at 138. 
The comments point in this connection to a statement in Spears, 283 
F.3d at 1017, that ``the statute does not provide for the [statute of 
limitations] to be tolled during the time a petitioner is awaiting 
appointment of counsel.'' Letter from AFPD, Feb. 22, 2018, at 138; see 
id. at 157-58.
    However, the court in Spears did not consider the possibility that, 
in the context of Arizona's system, it is the notice of postconviction 
relief, rather than a later filing presenting the defendant's claims 
for relief, that commences state postconviction proceedings and tolls 
the federal time limit. When the Ninth Circuit was presented with this 
question two years later in Isley, it held that the notice is the 
critical filing. As discussed above, it would be illogical to 
distinguish between section 2244(d) and section 2263 in this regard, 
and there is no reason to believe that federal habeas courts will do 
so.
    More broadly, I expect that the federal courts will interpret and 
apply section 2263 fairly so as to afford prisoners under sentence of 
death a reasonable amount of time to seek state and federal 
postconviction review, as they have done with the general federal 
habeas time limit under section 2244(d) and the corresponding time 
limit for motions by federal prisoners under 28 U.S.C. 2255. See, e.g., 
Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998). 
Speculation to the contrary provides no ground for concluding that 
Arizona's mechanism fails to satisfy the rule's requirement of 
reasonably timely appointment.
    Many of the public comments provided information about the time 
required for appointment of postconviction capital counsel in Arizona. 
Prisoners under sentence of death in Arizona often stated, in their 
comments, how long it took to appoint counsel in their individual 
cases. AFPD advised that the average delay in appointment of counsel 
from the Arizona Supreme Court's decision affirming a capital case to 
the appointment was 711 days from 2000 to 2011 and 256 days from 2011 
to the present. See Letter from AFPD, Feb. 22, 2018, at 140.
    These figures are uninformative, however, regarding satisfaction of 
28 CFR 26.21's timeliness requirement, because the time limits for 
state and federal postconviction review do not run continuously from 
the date of the Arizona Supreme Court's decision affirming a capital 
conviction and sentence. Ascertaining whether Arizona's mechanism 
provides for reasonably timely appointment, considering the time limits 
for seeking state and federal postconviction review and the time 
required for developing and presenting related claims, requires a more 
discriminating analysis of the rules and policies affecting the time 
available for filing postconviction petitions and their interaction 
with the timing of the appointment of counsel. This analysis, as set 
forth above, indicates that Arizona's mechanism does provide for 
appointment of counsel that is reasonably timely in the relevant sense.
    Finally, there is no concern about executions being carried out in 
Arizona during delay in the appointment of postconviction counsel, 
because Arizona does not carry out executions prior to the conclusion 
of the initial state postconviction proceedings. See Ariz. Rev. Stat. 
13-759(A).
    Consequently, Arizona's capital counsel mechanism comports with the 
definition of appointment in section 26.21, including its timeliness 
requirement.

III. Date the Mechanism Was Established

    Arizona has requested that I determine that it established its 
qualifying capital counsel mechanism as of July 17, 1998, referring to 
the date of appointment of postconviction counsel for the defendant in 
Spears, the case in which the Ninth Circuit determined that Arizona had 
established a mechanism satisfying the requirements of chapter 154. 
However, the elements of the mechanism approved by the Ninth Circuit in 
Spears were in place as of May 19, 1998. Specifically, the final 
element was the amendment of Arizona Revised Statutes section 13-4041 
relating to compensation and payment of litigation expenses, which 
became effective on May 19, 1998. See 1998 Ariz. Sess. Laws, Ch. 120, 
sec. 1. Consequently, I determine that the date

[[Page 20719]]

Arizona established the mechanism I now certify is May 19, 1998.

IV. Other Matters

    Some of the public comments opposed certification of Arizona's 
mechanism on grounds that amounted to criticisms of chapter 154 itself, 
often relating to chapter 154's time limit for federal habeas filing or 
its time limits for federal habeas courts to complete the adjudication 
of capital habeas petitions. Granting certification as requested by the 
State, they maintained, with the resulting applicability of chapter 
154's federal habeas review procedures, would have unconstitutional or 
unfair effects on capital defendants in Arizona.
    My responsibility under chapter 154 is to determine whether a State 
has established a postconviction capital counsel mechanism that 
satisfies the chapter's requirements. It is not to entertain 
constitutional challenges or policy objections to the underlying 
statutes. Nevertheless, I will address these objections because they 
have been raised as grounds for denying certification to Arizona and 
because they misrepresent chapter 154 itself and the Constitution as it 
bears on the validity of chapter 154.
    Before turning to particular issues, I note by way of background 
that, at the time of the Powell Committee Report in 1989, the average 
delay between imposition and execution of a capital sentence was about 
8 years. Since that time, the average delay between imposition and 
execution of a capital sentence has increased, standing at around 20 
years (243 months) at the end of 2017. In relation to Arizona, in 
particular, the submissions elicited by the State's request for chapter 
154 certification show capital cases in which the litigation has 
continued for more than 20 years. On a nationwide basis, there were 
2,703 prisoners under sentence of death at the end of 2017--and 23 
executions were carried out in that year. See Bureau of Justice 
Statistics, Capital Punishment, 2017: Selected Findings, at 2 tbl. 1; 
id. at 4 tbl. 3. Thus, the litigation problems to which chapter 154 is 
addressed have compounded over time, with profound effects on the 
justice system's ability to use the sanction of capital punishment for 
the gravest crimes.

A. Time Limits Under Chapter 154

    As noted above, the criticisms of chapter 154 in the public 
comments largely relate to the chapter's time limitation rules for 
federal habeas litigation in capital cases.
1. Time Limit for Federal Habeas Filing
    Some commenters objected to the 180-day time limit for federal 
habeas filing under 28 U.S.C. 2263, which is shorter than the 1-year 
period under 28 U.S.C. 2244(d). The possibility that a shorter time 
limit might apply to pending cases following a certification, 
commenters stated, creates difficulty in advising clients and leads to 
the hasty filing of pro forma petitions for protective reasons. They 
expressed the concern that application of the reduced time limit may 
result in retrospective determinations that federal habeas filings, 
though consistent with the currently applicable section 2244(d) time 
limit, were untimely under section 2263 and subject to dismissal on 
that basis. Consequently, they maintain, certifying Arizona's capital 
counsel mechanism may deny prisoners due process or result in the 
execution of prisoners who would have obtained relief had their claims 
been heard. Commenters also raised other objections to section 2263, 
including that its time limit is too short to allow adequate 
investigation and preparation of claims or to secure evidence of their 
clients' innocence, or that the section 2263 time limit's starting 
point will leave insufficient time for seeking postconviction review 
when taken in conjunction with the timing rules for the U.S. Supreme 
Court's certiorari process.
    Regarding uncertainty about the time limit that will apply, that 
possibility is inherent in Congress's design of the statutory scheme 
for federal habeas review and the fact that Congress sometimes decides 
to make changes. Essentially the same issue was presented by the 
enactment in 1996 of 28 U.S.C. 2244(d), which created a 1-year time 
limit for federal habeas filing, where there had previously been no 
time limit for federal habeas filing. Courts did not apply the new 
section 2244(d) time limit so as to unfairly bar petitions filed in 
existing cases, but rather ensured the availability of the 1-year 
period to all petitioners. See, e.g., Calderon v. U.S. Dist. Ct. for 
the Cent. Dist. of Cal., 128 F.3d 1283, 1287 (9th Cir. 1997); see also 
Calderon v. Ashmus, 523 U.S. at 748 & n.3 (explaining that uncertainty 
about applicable time limit does not confer standing to challenge 
application of chapter 154); Habeas Corpus Resource Ctr., 816 F.3d at 
1250 (same, regarding challenge to regulations implementing chapter 
154). I expect that the federal courts will similarly apply the chapter 
154 time limit, where it is newly applicable, in a manner that ensures 
fundamental fairness. However the courts address this issue, it is not 
a matter under the control of the Attorney General or the State of 
Arizona, and it does not bear on whether Arizona has established a 
capital counsel mechanism satisfying the requirements of chapter 154.
    The same is true regarding such matters as the adequacy of the time 
provided for federal habeas filing under chapter 154. Congress 
evidently regarded the 180-day period for federal habeas filing under 
28 U.S.C. 2263, subject to tolling, as adequate and warranted, 
considering the availability of counsel to the petitioner throughout 
the state court litigation, and the unique problem of litigation delay 
in capital cases. See 137 Cong. Rec. at 6013; 135 Cong. Rec. at 24694-
95, 24697-98 (Powell Committee Report). Congress has broad authority 
under the Constitution to determine federal habeas procedure. See 
Felker v. Turpin, 518 U.S. 651, 664 (1996) (``judgments about the 
proper scope of the writ are `normally for Congress to make' '') 
(quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). Even if I were 
to agree--and I do not--that such adjustments of federal habeas 
procedure are problematic on constitutional or prudential grounds, I 
have no authority to overrule Congress's decisions in these matters. 
Nor do I have authority to add to chapter 154's express requirements, 
see 28 U.S.C. 2265(a)(3), which forecloses requiring the State to waive 
chapter 154's time limits--as some commenters may wish--as a condition 
of certification.
    Noting that section 2263(b)(1) does not provide for tolling until a 
petition for certiorari is filed or the time for seeking certiorari 
expires, some comments expressed a concern that much of the limitation 
period may be consumed if the defendant does not petition for 
certiorari soon after ``final State court affirmance of the conviction 
and sentence on direct review.'' 28 U.S.C. 2263(a). However, the 
comments recognized that this will not occur if the triggering event 
under section 2263(a) is understood to be the Arizona Supreme Court's 
issuance of its mandate--which does not occur until after the U.S. 
Supreme Court's certiorari process. The interpretation of section 2263 
on this point is a matter under the control of the federal courts, not 
the Attorney General or the State of Arizona, and it does not conflict 
with my determination that Arizona has established a qualifying capital 
counsel mechanism under chapter 154.

[[Page 20720]]

2. Time Limits for Federal Habeas Adjudication
    Beyond the criticisms of the chapter 154 time limit for federal 
habeas filings, some comments objected that the 28 U.S.C. 2266 time 
limits for federal district courts and courts of appeals to adjudicate 
federal habeas petitions are unfair and unconstitutional, contrasting 
them to the longer periods of time that federal courts typically take 
now in adjudicating federal habeas petitions in capital cases. Like the 
other constitutional and policy critiques of chapter 154 appearing in 
the public comments, these comments do not bear on the question I am 
charged with answering: Whether Arizona has established a capital 
counsel mechanism satisfying chapter 154's requirements. And like the 
other criticisms of chapter 154, these objections are not well founded.
    Defining rules of federal judicial procedure is an exercise of 
legislative power that the Constitution vests in Congress. See Sibbach 
v. Wilson & Co., 312 U.S. 1, 9-10 (1941) (``Congress has undoubted 
power to regulate the practice and procedure of federal courts'') 
(footnote omitted). Congress may delegate some rulemaking authority to 
the courts, as it has done in the Rules Enabling Act, 28 U.S.C. 2071-
77, and courts may decide such matters in default of legislative 
action--neither of which detracts from Congress's paramount authority 
in this area. See id.; see also, e.g., Mistretta v. United States, 488 
U.S. 361, 386-88 (1989); Palermo v. United States, 360 U.S. 343, 345-48 
(1959). That includes the authority to determine the procedures for 
federal review of state prisoners' applications for habeas corpus. See 
Felker, 518 U.S. at 664; Lonchar, 517 U.S. at 323.
    The principal timing rules for adjudications under chapter 154 are 
as follows: Section 2266(a) provides that federal habeas applications 
subject to chapter 154 are to be given priority by the district court 
and by the court of appeals over all noncapital matters. Section 
2266(b) provides that a district court is to complete its adjudication 
of a capital habeas petition within 450 days of filing or 60 days of 
submission for decision, subject to a possible 30-day extension. 
Section 2266(c) provides that appellate panels are to render their 
decisions within 120 days of completion of briefing, that requests for 
rehearing or rehearing en banc are to be decided within 30 days of the 
request or a responsive pleading, and that a rehearing or rehearing en 
banc is to be decided within 120 days of the date it is granted.
    The public comments provided no persuasive reason why these time 
periods for adjudication should be considered unreasonable or beyond 
Congress's authority over matters of judicial procedure. Nor did the 
comments provide any persuasive reason to reach such a conclusion with 
respect to the application of these time limits to pending cases. In 
relation to such cases, the sponsor of the 2006 amendments to chapter 
154 explained the application of the amendments' effective-date 
provision, appearing in section 507(d) of Public Law 109-177, as 
starting the time limits when the Attorney General certifies that the 
State has established a qualifying capital counsel mechanism. So 
understood, they will not impose impossible requirements on courts to 
conclude the adjudication of pending capital cases within time frames 
that have already passed. See 152 Cong. Rec. at 2449 (remarks of Sen. 
Kyl); cf. Br. for Appellants at 22-23, Habeas Corpus Resource Ctr. v. 
U.S. Dep't of Justice, 816 F.3d 1241 (9th Cir. 2016) (No. 14-16928) 
(explaining similar application of section 2244(d) time limit to 
pending cases).
    Because protracted collateral litigation impedes the execution of 
capital sentences, it is reasonable for Congress to provide that courts 
are to prioritize these proceedings and to set limits on their 
duration. See 152 Cong. Rec. at 2441-48 (2006) (remarks of Sen. Kyl); 
151 Cong. Rec. at E2639 (extension of remarks of Rep. Flake); 137 Cong. 
Rec. at 6013-14 (legislative history); 135 Cong. Rec. at 24694-95 
(Powell Committee Report). If petitioners believe that the time limits 
for adjudicating petitions are unconstitutional as applied to their 
cases, they may so argue to the federal habeas courts that adjudicate 
their petitions. However the courts may rule on such claims, it has no 
bearing on the question whether Arizona has established a capital 
counsel mechanism satisfying the requirements of chapter 154.
3. Litigation Burdens
    In addition to criticisms based on the differences between the 
chapter 154 time limits and the time now required for capital federal 
habeas litigation, public comments expressed concerns about novel 
litigation burdens under chapter 154, such as having to litigate under 
28 U.S.C. 2261(b)(2) the question whether the defendant's state 
postconviction counsel was appointed pursuant to the certified state 
mechanism. But litigation of this nature will not necessarily be common 
or burdensome. See 152 Cong. Rec. at 2446 (remarks of Sen. Kyl) 
(discussing limited nature of inquiry).
    Moreover, the critical comments did not consider the ways in which 
the application of chapter 154 may reduce burdens for defense counsel. 
See 73 FR at 75336 (``the chapter 154 procedures eliminate a number of 
burdens that defense counsel would otherwise bear''). The differences 
include the automatic stay provisions of 28 U.S.C. 2262, which should 
reduce the need to engage in litigation over stays of execution. 
Chapter 154 also provides, in section 2264, clearer and tighter rules 
concerning claims cognizable in federal habeas review. This will 
relieve federal habeas counsel of the need to develop and present 
claims that may be cognizable under the general habeas rules but are 
not cognizable under chapter 154. See 152 Cong. Rec. at 2448-49 
(remarks of Sen. Kyl). Federal habeas counsel will not need to litigate 
questions concerning the exhaustion of state remedies, and will be 
relieved of other burdens incident to the movement of cases between the 
state courts and the federal courts resulting from the exhaustion 
requirement of 28 U.S.C. 2254(b)-(c), because it does not apply under 
chapter 154. See 28 U.S.C. 2264(b) (``Following review subject to 
subsections (a), (d), and (e) of section 2254, the court shall rule on 
the claims properly before it.''); see also 152 Cong. Rec. at 2447-48 
(remarks of Sen. Kyl); 135 Cong. Rec. at 24695, 24698 (Powell Committee 
Report).
    Likewise, chapter 154 reduces or eliminates a number of burdens and 
causes of delay for federal habeas courts. The automatic stay provision 
reduces the need to adjudicate requests for stays of execution. Courts 
will not need to review and decide claims that are disallowed under 
section 2264. Adjudication of questions concerning exhaustion of state 
remedies will not be required because the exhaustion requirement does 
not apply under chapter 154. For the same reason, delays that result 
from sending unexhausted claims back to state court for exhaustion of 
state remedies will no longer occur.
    Consequently, the time required under currently applicable law for 
counsel to prepare federal habeas petitions, and for federal habeas 
courts to complete their adjudications, are not reliable indicators of 
how much time will be needed under the chapter 154 procedures. 
Objections to certification of Arizona's mechanism premised on the 
assumption that the time requirements in either case must be similar 
are not well-founded.

[[Page 20721]]

B. Validity of the Implementing Rule

    Some comments challenged the implementing rule for chapter 154, 
Subpart B of 28 CFR part 26, arguing that it is invalid on procedural 
and substantive grounds. These criticisms are not well founded and in 
any event do not bear on this certification. See Br. for Appellants at 
28-49 and Reply Br. for Appellants at 15-28, Habeas Corpus Resource 
Ctr. v. U.S. Dep't of Justice, 816 F.3d 1241 (9th Cir. 2016) (No. 14-
16928).

C. Request for a Stay

    Some comments asked that I stay my certification of Arizona's 
mechanism pending judicial review of my determination, arguing the 
matter on the terms a court would consider in deciding whether to order 
a stay--likelihood that the determination will be overturned on 
judicial review, alleged irreparable harm to the commenters and their 
clients, alleged lack of harm to Arizona and other interested parties, 
and the public interest. Chapter 154 creates no requirement that I 
grant a stay, however, and I decline to do so.
    Chapter 154 conditions its applicability on the Attorney General's 
determination that a State has established a capital counsel mechanism 
satisfying its requirements--not on the completion of judicial review 
of my determination. See 28 U.S.C. 2261(b), 2265. Also, 28 U.S.C. 
2265(a)(1)(B), (a)(2) directs me to determine the date on which the 
state capital counsel mechanism was established and makes that date the 
effective date of the certification. Thus, chapter 154 applies to cases 
in which postconviction counsel was appointed pursuant to the 
mechanism, though the appointment occurred prior to the publication of 
this notice. See 152 Cong. Rec. at 2449 (remarks of Sen. Kyl) 
(explaining effect of section 2265(a)(2)); 151 Cong. Rec. at E2640 
(extension of remarks of Rep. Flake) (same); Habeas Corpus Resource 
Ctr., 816 F.3d at 1245 (``[t]he certification is effective as of the 
date the Attorney General finds the state established its adequate 
mechanism''). A stay would mean, however, that the certification would 
not yet be effective in relation to cases in which state postconviction 
counsel was appointed on or after May 19, 1998--notwithstanding my 
determination that Arizona established a capital counsel mechanism 
satisfying chapter 154 on that date--but would only take effect at some 
unpredictable future time when litigation relating to the certification 
has run its course.
    Moreover, the commenters' arguments for a stay were not convincing. 
It is not likely that a challenge to the certification will prevail on 
the merits because Arizona has in fact established a mechanism 
satisfying the requirements of chapter 154, as explained in this 
notice. The Ninth Circuit's determination in Spears that Arizona has 
established a capital counsel mechanism satisfying the requirements of 
chapter 154--a mechanism that has not changed materially since the time 
of that decision--makes it particularly unlikely that another court 
will reach a different conclusion.
    Even if there were a likelihood of a challenge succeeding on the 
merits, there is no public interest, or prospect of irreparable injury, 
that justifies a stay. The commenters' claims on these points largely 
relate to a concern that the time available to seek federal habeas 
review will be severely curtailed or eliminated if the time limit of 28 
U.S.C. 2263 becomes applicable. This concern is not well founded and 
does not bear on the validity of the certification as explained above. 
Commenters also raised, in this connection, criticisms of other aspects 
of chapter 154, including provisions of 28 U.S.C. 2264 and 2266 that 
limit review of procedurally defaulted claims and amendment of 
petitions, and the provisions that set time limits for federal habeas 
courts to conclude their review of state capital cases. These features 
of chapter 154 are legislative responses to the unique problems of 
delay in capital litigation and are within Congress's constitutional 
authority over matters of judicial procedure in federal habeas review, 
as discussed above. The litigation and adjudication of cases in 
conformity with the applicable legal rules are not sources of 
``injury'' supporting a stay. All of these claims amount to criticisms 
of chapter 154 itself. They may arise in future habeas corpus 
litigation, but they do not bear on the question before me. See 
Calderon v. Ashmus, 523 U.S. at 746-49.
    On the other side of the ledger, Arizona will be harmed if it is 
denied the benefits of the chapter 154 review procedures, to which it 
is legally entitled based on its establishment of a capital counsel 
mechanism satisfying the requirements of chapter 154. The survivors of 
victims murdered by persons under sentence of death in Arizona will be 
harmed by a stay, prolonging their suffering and further denying them 
the closure of a final disposition of the cases that concern them. See 
152 Cong. Rec. at 2441-47 (remarks of Sen. Kyl); 151 Cong. Rec. at 
E2639 (extension of remarks of Rep. Flake). There will also be harm to 
any persons under sentence of death in Arizona who would be granted 
relief on a final disposition of their federal habeas petitions, but 
whose cases now linger for years or decades because there is no 
requirement that the cases be accorded priority or concluded within any 
time frame. As noted above, the submissions elicited by Arizona's 
request for certification show instances in which the litigation of 
Arizona capital cases has continued for over 20 years. Staying the 
remediation Congress has adopted, to which Arizona is entitled, would 
be harmful to many and not in the public interest.
    Consequently, I do not stay my certification of Arizona's 
postconviction capital counsel mechanism and the effective date of the 
certification is May 19, 1998, in conformity with 28 U.S.C. 2265(a)(2).

    Dated: April 6, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-07617 Filed 4-13-20; 8:45 am]
 BILLING CODE 4410-19-P