-CITE-

28 USC CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN

CAPITAL CASES 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-MISC1-

Sec.

2261. Prisoners in State custody subject to capital

sentence; appointment of counsel; requirement of rule

of court or statute; procedures for appointment.

2262. Mandatory stay of execution; duration; limits on stays

of execution; successive petitions.

2263. Filing of habeas corpus application; time

requirements; tolling rules.

2264. Scope of Federal review; district court adjudications.

2265. Application to State unitary review procedure.

2266. Limitation periods for determining applications and

motions.

-End-

-CITE-

28 USC Sec. 2261 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

Sec. 2261. Prisoners in State custody subject to capital sentence;

appointment of counsel; requirement of rule of court or statute;

procedures for appointment

-STATUTE-

(a) This chapter shall apply to cases arising under section 2254

brought by prisoners in State custody who are subject to a capital

sentence. It shall apply only if the provisions of subsections (b)

and (c) are satisfied.

(b) This chapter is applicable if a State establishes by statute,

rule of its court of last resort, or by another agency authorized

by State law, a mechanism for the appointment, compensation, and

payment of reasonable litigation expenses of competent counsel in

State post-conviction proceedings brought by indigent prisoners

whose capital convictions and sentences have been upheld on direct

appeal to the court of last resort in the State or have otherwise

become final for State law purposes. The rule of court or statute

must provide standards of competency for the appointment of such

counsel.

(c) Any mechanism for the appointment, compensation, and

reimbursement of counsel as provided in subsection (b) must offer

counsel to all State prisoners under capital sentence and must

provide for the entry of an order by a court of record -

(1) appointing one or more counsels to represent the prisoner

upon a finding that the prisoner is indigent and accepted the

offer or is unable competently to decide whether to accept or

reject the offer;

(2) finding, after a hearing if necessary, that the prisoner

rejected the offer of counsel and made the decision with an

understanding of its legal consequences; or

(3) denying the appointment of counsel upon a finding that the

prisoner is not indigent.

(d) No counsel appointed pursuant to subsections (b) and (c) to

represent a State prisoner under capital sentence shall have

previously represented the prisoner at trial or on direct appeal in

the case for which the appointment is made unless the prisoner and

counsel expressly request continued representation.

(e) The ineffectiveness or incompetence of counsel during State

or Federal post-conviction proceedings in a capital case shall not

be a ground for relief in a proceeding arising under section 2254.

This limitation shall not preclude the appointment of different

counsel, on the court's own motion or at the request of the

prisoner, at any phase of State or Federal post-conviction

proceedings on the basis of the ineffectiveness or incompetence of

counsel in such proceedings.

-SOURCE-

(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110

Stat. 1221.)

-MISC1-

EFFECTIVE DATE

Section 107(c) of Pub. L. 104-132 provided that: "Chapter 154 of

title 28, United States Code (as added by subsection (a)) shall

apply to cases pending on or after the date of enactment of this

Act [Apr. 24, 1996]."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2262, 2265 of this title.

-End-

-CITE-

28 USC Sec. 2262 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

Sec. 2262. Mandatory stay of execution; duration; limits on stays

of execution; successive petitions

-STATUTE-

(a) Upon the entry in the appropriate State court of record of an

order under section 2261(c), a warrant or order setting an

execution date for a State prisoner shall be stayed upon

application to any court that would have jurisdiction over any

proceedings filed under section 2254. The application shall recite

that the State has invoked the post-conviction review procedures of

this chapter and that the scheduled execution is subject to stay.

(b) A stay of execution granted pursuant to subsection (a) shall

expire if -

(1) a State prisoner fails to file a habeas corpus application

under section 2254 within the time required in section 2263;

(2) before a court of competent jurisdiction, in the presence

of counsel, unless the prisoner has competently and knowingly

waived such counsel, and after having been advised of the

consequences, a State prisoner under capital sentence waives the

right to pursue habeas corpus review under section 2254; or

(3) a State prisoner files a habeas corpus petition under

section 2254 within the time required by section 2263 and fails

to make a substantial showing of the denial of a Federal right or

is denied relief in the district court or at any subsequent stage

of review.

(c) If one of the conditions in subsection (b) has occurred, no

Federal court thereafter shall have the authority to enter a stay

of execution in the case, unless the court of appeals approves the

filing of a second or successive application under section 2244(b).

-SOURCE-

(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110

Stat. 1222.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2265 of this title.

-End-

-CITE-

28 USC Sec. 2263 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

Sec. 2263. Filing of habeas corpus application; time requirements;

tolling rules

-STATUTE-

(a) Any application under this chapter for habeas corpus relief

under section 2254 must be filed in the appropriate district court

not later than 180 days after final State court affirmance of the

conviction and sentence on direct review or the expiration of the

time for seeking such review.

(b) The time requirements established by subsection (a) shall be

tolled -

(1) from the date that a petition for certiorari is filed in

the Supreme Court until the date of final disposition of the

petition if a State prisoner files the petition to secure review

by the Supreme Court of the affirmance of a capital sentence on

direct review by the court of last resort of the State or other

final State court decision on direct review;

(2) from the date on which the first petition for

post-conviction review or other collateral relief is filed until

the final State court disposition of such petition; and

(3) during an additional period not to exceed 30 days, if -

(A) a motion for an extension of time is filed in the Federal

district court that would have jurisdiction over the case upon

the filing of a habeas corpus application under section 2254;

and

(B) a showing of good cause is made for the failure to file

the habeas corpus application within the time period

established by this section.

-SOURCE-

(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110

Stat. 1223.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2262, 2265 of this title.

-End-

-CITE-

28 USC Sec. 2264 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

Sec. 2264. Scope of Federal review; district court adjudications

-STATUTE-

(a) Whenever a State prisoner under capital sentence files a

petition for habeas corpus relief to which this chapter applies,

the district court shall only consider a claim or claims that have

been raised and decided on the merits in the State courts, unless

the failure to raise the claim properly is -

(1) the result of State action in violation of the Constitution

or laws of the United States;

(2) the result of the Supreme Court's recognition of a new

Federal right that is made retroactively applicable; or

(3) based on a factual predicate that could not have been

discovered through the exercise of due diligence in time to

present the claim for State or Federal post-conviction review.

(b) Following review subject to subsections (a), (d), and (e) of

section 2254, the court shall rule on the claims properly before

it.

-SOURCE-

(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110

Stat. 1223.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2265 of this title.

-End-

-CITE-

28 USC Sec. 2265 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

Sec. 2265. Application to State unitary review procedure

-STATUTE-

(a) For purposes of this section, a "unitary review" procedure

means a State procedure that authorizes a person under sentence of

death to raise, in the course of direct review of the judgment,

such claims as could be raised on collateral attack. This chapter

shall apply, as provided in this section, in relation to a State

unitary review procedure if the State establishes by rule of its

court of last resort or by statute a mechanism for the appointment,

compensation, and payment of reasonable litigation expenses of

competent counsel in the unitary review proceedings, including

expenses relating to the litigation of collateral claims in the

proceedings. The rule of court or statute must provide standards of

competency for the appointment of such counsel.

(b) To qualify under this section, a unitary review procedure

must include an offer of counsel following trial for the purpose of

representation on unitary review, and entry of an order, as

provided in section 2261(c), concerning appointment of counsel or

waiver or denial of appointment of counsel for that purpose. No

counsel appointed to represent the prisoner in the unitary review

proceedings shall have previously represented the prisoner at trial

in the case for which the appointment is made unless the prisoner

and counsel expressly request continued representation.

(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation

to cases involving a sentence of death from any State having a

unitary review procedure that qualifies under this section.

References to State "post-conviction review" and "direct review" in

such sections shall be understood as referring to unitary review

under the State procedure. The reference in section 2262(a) to "an

order under section 2261(c)" shall be understood as referring to

the post-trial order under subsection (b) concerning representation

in the unitary review proceedings, but if a transcript of the trial

proceedings is unavailable at the time of the filing of such an

order in the appropriate State court, then the start of the 180-day

limitation period under section 2263 shall be deferred until a

transcript is made available to the prisoner or counsel of the

prisoner.

-SOURCE-

(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110

Stat. 1223.)

-End-

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28 USC Sec. 2266 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 154 - SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

-HEAD-

Sec. 2266. Limitation periods for determining applications and

motions

-STATUTE-

(a) The adjudication of any application under section 2254 that

is subject to this chapter, and the adjudication of any motion

under section 2255 by a person under sentence of death, shall be

given priority by the district court and by the court of appeals

over all noncapital matters.

(b)(1)(A) A district court shall render a final determination and

enter a final judgment on any application for a writ of habeas

corpus brought under this chapter in a capital case not later than

180 days after the date on which the application is filed.

(B) A district court shall afford the parties at least 120 days

in which to complete all actions, including the preparation of all

pleadings and briefs, and if necessary, a hearing, prior to the

submission of the case for decision.

(C)(i) A district court may delay for not more than one

additional 30-day period beyond the period specified in

subparagraph (A), the rendering of a determination of an

application for a writ of habeas corpus if the court issues a

written order making a finding, and stating the reasons for the

finding, that the ends of justice that would be served by allowing

the delay outweigh the best interests of the public and the

applicant in a speedy disposition of the application.

(ii) The factors, among others, that a court shall consider in

determining whether a delay in the disposition of an application is

warranted are as follows:

(I) Whether the failure to allow the delay would be likely to

result in a miscarriage of justice.

(II) Whether the case is so unusual or so complex, due to the

number of defendants, the nature of the prosecution, or the

existence of novel questions of fact or law, that it is

unreasonable to expect adequate briefing within the time

limitations established by subparagraph (A).

(III) Whether the failure to allow a delay in a case that,

taken as a whole, is not so unusual or so complex as described in

subclause (II), but would otherwise deny the applicant reasonable

time to obtain counsel, would unreasonably deny the applicant or

the government continuity of counsel, or would deny counsel for

the applicant or the government the reasonable time necessary for

effective preparation, taking into account the exercise of due

diligence.

(iii) No delay in disposition shall be permissible because of

general congestion of the court's calendar.

(iv) The court shall transmit a copy of any order issued under

clause (i) to the Director of the Administrative Office of the

United States Courts for inclusion in the report under paragraph

(5).

(2) The time limitations under paragraph (1) shall apply to -

(A) an initial application for a writ of habeas corpus;

(B) any second or successive application for a writ of habeas

corpus; and

(C) any redetermination of an application for a writ of habeas

corpus following a remand by the court of appeals or the Supreme

Court for further proceedings, in which case the limitation

period shall run from the date the remand is ordered.

(3)(A) The time limitations under this section shall not be

construed to entitle an applicant to a stay of execution, to which

the applicant would otherwise not be entitled, for the purpose of

litigating any application or appeal.

(B) No amendment to an application for a writ of habeas corpus

under this chapter shall be permitted after the filing of the

answer to the application, except on the grounds specified in

section 2244(b).

(4)(A) The failure of a court to meet or comply with a time

limitation under this section shall not be a ground for granting

relief from a judgment of conviction or sentence.

(B) The State may enforce a time limitation under this section by

petitioning for a writ of mandamus to the court of appeals. The

court of appeals shall act on the petition for a writ of mandamus

not later than 30 days after the filing of the petition.

(5)(A) The Administrative Office of the United States Courts

shall submit to Congress an annual report on the compliance by the

district courts with the time limitations under this section.

(B) The report described in subparagraph (A) shall include copies

of the orders submitted by the district courts under paragraph

(1)(B)(iv).

(c)(1)(A) A court of appeals shall hear and render a final

determination of any appeal of an order granting or denying, in

whole or in part, an application brought under this chapter in a

capital case not later than 120 days after the date on which the

reply brief is filed, or if no reply brief is filed, not later than

120 days after the date on which the answering brief is filed.

(B)(i) A court of appeals shall decide whether to grant a

petition for rehearing or other request for rehearing en banc not

later than 30 days after the date on which the petition for

rehearing is filed unless a responsive pleading is required, in

which case the court shall decide whether to grant the petition not

later than 30 days after the date on which the responsive pleading

is filed.

(ii) If a petition for rehearing or rehearing en banc is granted,

the court of appeals shall hear and render a final determination of

the appeal not later than 120 days after the date on which the

order granting rehearing or rehearing en banc is entered.

(2) The time limitations under paragraph (1) shall apply to -

(A) an initial application for a writ of habeas corpus;

(B) any second or successive application for a writ of habeas

corpus; and

(C) any redetermination of an application for a writ of habeas

corpus or related appeal following a remand by the court of

appeals en banc or the Supreme Court for further proceedings, in

which case the limitation period shall run from the date the

remand is ordered.

(3) The time limitations under this section shall not be

construed to entitle an applicant to a stay of execution, to which

the applicant would otherwise not be entitled, for the purpose of

litigating any application or appeal.

(4)(A) The failure of a court to meet or comply with a time

limitation under this section shall not be a ground for granting

relief from a judgment of conviction or sentence.

(B) The State may enforce a time limitation under this section by

applying for a writ of mandamus to the Supreme Court.

(5) The Administrative Office of the United States Courts shall

submit to Congress an annual report on the compliance by the courts

of appeals with the time limitations under this section.

-SOURCE-

(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110

Stat. 1224.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2265 of this title.

-End-