Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104-132, section 107, 110 Stat. 1214, 1221-1226 (1996), later amended in 2006, Public Law 109-177, section 507, 120 Stat. 192, 250-251 (2006), Congress promulgated special procedures for federal habeas corpus review of cases brought by prisoners in state custody who are subject to a capital sentence. Chapter 154 of Title 28, United States Code, provides that these procedures are only applicable in limited circumstances. The first statutory requirement is that the Attorney General must have certified that the State has established a qualifying mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners. The Attorney General must also determine the date on which the qualifying mechanism was established, and whether the State provides standards of competency for the appointment of counsel in such proceedings. The second statutory requirement is that counsel was, in fact, appointed pursuant to the certified state mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent.
In 2013, as required by Chapter 154, then-Attorney General Holder promulgated regulations to implement the certification procedure under Chapter 154, 28 C.F.R. Part 26, Subpart B, U.S. Dep’t of Justice, Final Rule, Certification Process for State Capital Counsel System (Sept. 23, 2013), 78 Fed. Reg. 58,160.
Litigation challenging these regulations was resolved in March 2017, when the Supreme Court denied a petition for a writ of certiorari, letting stand the United States Court of Appeals for the Ninth Circuit’s instructions to dismiss the case.
The Attorney General directed the Office of Legal Policy (“OLP”) to manage the application and review process set forth in the regulations. See “Guidance for Certification of State Capital Counsel Mechanisms” (August 22, 2017).