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PTO-29412
07-28-2005, 04:30 PM
Bid to Speed Death Penalty Appeals Under Fire
Conservatives and former prosecutors are among foes of a bill, before a Senate panel today, to curtail 'endless' delays in cases.

By Henry Weinstein, Times Staff Writer

The Senate Judiciary Committee will take up legislation today meant to streamline the death penalty appeals process — something critics fear could lead to the execution of the wrongly convicted.

Opposition is mounting to the Streamlined Procedures Act introduced in the Senate by Jon Kyl (R-Ariz.) and in the House by Dan Lungren (R-Gold River). Concerns come not only from death-penalty opponents but from individuals and groups not often thought of as vocal supporters of the rights of criminal defendants. Among the critics are the Rutherford Institute, a conservative legal group that specializes in religious freedom and antiabortion issues; Bob Barr, the conservative Republican former congressman from Georgia; more than 50 former prosecutors; and more than a dozen former federal judges.

The legislation, opponents say, would dramatically restrict federal courts' ability to consider habeas corpus petitions from state prisoners who claim that their constitutional rights have been violated or that they have evidence they are innocent.

Habeas corpus is the centuries-old method of challenging allegedly illegal imprisonments by giving inmates a day in court to assert that a serious error has been made in their case.

Kyl and Lungren introduced virtually identical bills in the Senate and House to remedy "endless delays" between convictions in capital cases and executions.

They say that restrictions Congress imposed in the Anti-Terrorism and Effective Death Penalty Act of 1996 are not enough.

Kyl said the number of habeas corpus petitions pending in federal district courts had increased to 23,218 in fiscal year 2003, from 13,359 in fiscal year 1994, citing Administrative Office of the Courts data.

The bill would impose a host of restrictions on an inmate's ability to get a federal court to hear a habeas corpus petition.

A group of former federal judges, in a letter of opposition, told the Senate Judiciary Committee that "there are now too many instances to ignore in which innocent people were sentenced to prison, or even to death, and it took years for the evidence of their innocence to come to light."

Kyl said the bill had an exception that would enable innocent people to obtain relief from a wrongful conviction.

But the former judges — including William H. Webster and William S. Sessions, both of whom served as directors of the FBI in Republican administrations — countered that "the language of the exception is so narrow that it will cover virtually no one."

The former jurists also said the bill would overturn several recent Supreme Court decisions interpreting the 1996 death penalty act "as well as several other decisions of the Rehnquist court, many of which have helped to further streamline the system and eliminate delays. It serves no one's interests to engender the kind of delays that this bill will create" by precipitating more litigation.

Moreover, the judges said, the impact of the bill would be "far more sweeping" than death penalty cases. The restrictions it would impose would cover "every state criminal conviction," including cases involving businesses, firearms and the environment.

The sweep of the measure is troubling and unwarranted, Barr said in a letter sent Wednesday to Judiciary Committee Chairman Arlen Specter (R-Pa.).

"I stand second to no one in believing in swift and certain justice," wrote Barr, a former prosecutor and one of the authors of the 1996 law. He said he thought the law was "working well to restrict [habeas corpus] petitions" and had seen "no evidence to the contrary."

"As a former member of Congress, I know that unfortunately there are times when political pressures lead to imprudent decisions that can be destructive to basic constitutional liberties…. [This] is an example of legislation that is being pressed without sufficient deliberation, and without any real evidence that it is needed.''

Among the former prosecutors against the bill are Ira Reiner, who served as Los Angeles County district attorney from 1984 to 1992, and Gil Garcetti, who held the position for eight years after that.

Reiner, who is a proponent of the death penalty and sought it dozens of times while running the district attorney's office, said he strongly opposed "this ill-conceived bill … whose transparent purpose is to strip the federal courts of their jurisdiction to review state criminal court proceedings."

He said it would "eviscerate the role of the federal courts in ensuring that innocent persons are not mistakenly convicted of crimes and that state courts do not send people to prison in violation of their constitutional rights."

At the first Senate hearing on the bill, Kent Cattani of the Arizona attorney general's office testified in support of the measure. Specter asked him whether Congress had "the authority to strip the courts of jurisdiction on constitutional issues." Cattani replied, "Yes, I think Congress has the authority to do so."

At the same hearing, Seth P. Waxman, who was U.S. solicitor general in the Clinton administration, described four death penalty cases in the last four years in which the Supreme Court found major constitutional violations overlooked by state courts. In one instance, prosecutors hid critical information from the defense. In another, the Supreme Court found that prosecutors had improperly kept blacks off a jury. If the Kyl-Lungren bill had been in effect, none of those cases would ever have been reviewed by a federal court, Waxman said.

"The title of this bill suggests that it would streamline the processing of habeas corpus cases," Waxman said. But Waxman said he found "something else entirely: Section after section of the bill would eliminate federal court jurisdiction to decide federal questions" in such cases.

Attorney Barry Scheck, co-founder of the Innocence Project, which had played a key role in freeing more than 100 wrongly convicted people — eight of whom had been on death row — said a number of those people would be in prison or dead if the proposed legislation had been in effect.

Scheck told the Judiciary Committee that the proposed law turned the lesson of those cases "on its head. It threatens to make what is already a torturous, difficult mountain for the wrongfully convicted to climb into a wholly impenetrable steel wall."

"Finding innocence is a fits-and-starts kind of process," said New York attorney George Kendall, who has litigated death penalty cases for more than two decades. "Habeas corpus was never supposed to be about innocence alone. It was always about whether the state courts faithfully applied federal constitutional law.

"This bill turns that on its head," insulating state courts from any meaningful review, he said.

Six people exonerated as a result of federal habeas corpus proceedings attended the first Senate hearing, including Thomas Goldstein, who was freed last year after 24 years in prison for a wrongful conviction in a Long Beach murder.

Goldstein's challenges to his conviction fell on deaf ears in state court. But five federal judges in California who reviewed the case found that his constitutional rights had been violated by prosecutors who used an unreliable jailhouse informant and by police who steered an eyewitness into incorrectly identifying Goldstein.
http://www.latimes.com/news/nationworld/nation/la-na-deathpenalty28jul28,0,4344190.story?coll=la-home-nation



THE FOLLOWING IS THE COMPLETE BILL



109th CONGRESS
1st Session



S. 1088



To establish streamlined procedures for collateral review of mixed petitions, amendments, and defaulted claims, and for other purposes.

IN THE SENATE OF THE UNITED STATES

May 19, 2005



Mr. KYL introduced the following bill; which was read twice and referred to the Committee on the Judiciary



A BILL

To establish streamlined procedures for collateral review of mixed petitions, amendments, and defaulted claims, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.



(a) Short Title- This Act may be cited as the `Streamlined Procedures Act of 2005'.


(b) Table of Contents- The table of contents for this Act is as follows:



Sec. 1. Short title; table of contents.





Sec. 2. Mixed petitions.





Sec. 3. Amendments to petitions.





Sec. 4. Procedurally defaulted claims.





Sec. 5. Tolling of limitation period.





Sec. 6. Harmless error in sentencing.





Sec. 7. Unified review standard.





Sec. 8. Appeals.





Sec. 9. Capital cases.





Sec. 10. Clemency and pardon decisions.





Sec. 11. Ex parte funding requests.





Sec. 12. Crime victims' rights.





Sec. 13. Technical corrections.





Sec. 14. Application to pending cases.



SEC. 2. MIXED PETITIONS.



Section 2254(b) of title 28, United States Code, is amended--



(1) in paragraph (1), by striking subparagraphs (A) and (B) and inserting the following:





`(A) the applicant--






`(i) has exhausted the remedies available in the courts of the State by fairly presenting and arguing the specific Federal basis for each claim in the State courts; and







`(ii) has described in the application how the applicant has exhausted each claim in the State courts; or






`(B)(i) the application presents a claim for relief that would qualify for consideration on the grounds described in subsection (e)(2); and





`(ii) the denial of such relief is contrary to, or would entail an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'; and





(2) by adding at the end the following:




`(4) Any unexhausted claim that does not qualify for consideration on the grounds described in this subsection shall be dismissed with prejudice.'.

SEC. 3. AMENDMENTS TO PETITIONS.



(a) In General- Section 2244 of title 28, United States Code, is amended by adding at the end the following:


`(e)(1) An application for a writ of habeas corpus may be amended once as a matter of course before the earlier of the date on which an answer to the application is filed or the expiration of the 1-year period described in subsection (d).


`(2) Except as provided under paragraph (1), an application may not be amended to modify existing claims or to present additional claims, unless the modified or newly presented claims would qualify for consideration on the grounds described in subsection (b)(2).'.


(b) Conforming Amendment- Section 2242 of title 28, United States Code, is amended in the third undesignated paragraph by striking `in the rules of procedure applicable to civil actions' and inserting `under section 2244(e)'.

SEC. 4. PROCEDURALLY DEFAULTED CLAIMS.



(a) In General- Section 2254 of title 28, United States Code, is amended--



(1) by redesignating subsections (h) and (i) as subsections (i) and (j), respectively; and





(2) by adding after subsection (g) the following:




`(h)(1) A court, justice, or judge shall not have jurisdiction to consider an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court with respect to any claim that was found by the State court to be procedurally barred, or any claim of ineffective assistance of counsel related to such claim, unless--



`(A) the claim would qualify for consideration on the grounds described in subsection (e)(2); or





`(B) the State, through counsel, expressly waives the provisions of this paragraph.




`(2)(A) A court, justice, or judge shall not have jurisdiction to consider any claim that the State court denies on the merits and on the ground that the claim was not properly raised under State procedural law, or any claim of ineffective assistance of counsel related to such claim, unless the claim would qualify for consideration on the grounds described in subsection (e)(2).


`(B) A court, justice, or judge shall not have jurisdiction to consider any claim that is otherwise subject to paragraph (1) and that was reviewed by the State court for plain error, fundamental error, or under a similarly heightened standard of review, unless the claim would qualify for consideration on the grounds described in subsection (e)(2).


`(3) The State shall not be required to answer any claim described in paragraph (1) or (2) unless the court first determines that the claim would qualify for consideration on the grounds described in subsection (e)(2).


`(4) If a court determines that a State court order denying relief on procedural grounds is ambiguous as to which claims were found to be procedurally barred, the court shall resolve any perceived ambiguity, if necessary, by examining the full record in the State court.


`(5) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim under paragraph (1) or (2) unless the denial of such relief is contrary to, or would entail an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'.


(b) Limitation- Section 2244(d)(2) of title 28, United States Code, as amended by section 3, is amended by adding at the end the following: `An application that was otherwise improperly filed in State court shall not be deemed to have been properly filed because the State court exercises discretion in applying a rule or recognizes exceptions to that rule.'.

SEC. 5. TOLLING OF LIMITATION PERIOD.



Section 2244(d) of title 28, United States Code, is amended--



(1) in paragraph (2), by striking `judgment or'; and





(2) by adding at the end the following:




`(3) In this section, an application for State post-conviction or other collateral review--



`(A) is pending from the date on which the application is filed with a State court until the date on which the same State court rules on that application; and





`(B) is not pending during any period of time between the date on which a State court rules on that application and the date on which the application or a related application is filed, or is otherwise presented, for adjudication to such State court on rehearing authorized by State law or to a higher State court.




`(4) The period of limitation under paragraph (1) may be tolled, suspended, or extended only as provided under this subsection.'.

SEC. 6. HARMLESS ERROR IN SENTENCING.



Section 2254 of title 28, United States Code, as amended by section 4, is amended by adding at the end the following:


`(k) A court, justice, or judge shall not have jurisdiction to consider an application with respect to an error relating to the applicant's sentence or sentencing that has been found to be harmless or not prejudicial in State court proceedings, unless a determination that the error is not structural is contrary to clearly established Federal law, as determined by the Supreme Court of the United States.'.

SEC. 7. UNIFIED REVIEW STANDARD.



Section 107(c) of the Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 2261 note) is amended by striking `Chapter 154 of title 28, United States Code (as amended by subsection (a))' and inserting `This title and the amendments made by this title'.

SEC. 8. APPEALS.



(a) Appellate Time Limits- Section 2254 of title 28, United States Code, as amended by sections 4 and 6, is further amended by adding at the end the following:


`(l) In review by a court of appeals of a district court's determination of an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, the following shall apply:



`(1) A timely filed notice of appeal from an order issuing a writ of habeas corpus shall operate as a stay of that order, pending final disposition of the appeal.





`(2) A court of appeals shall decide the appeal from an order granting or denying a writ of habeas corpus--






`(A) not later than 300 days after the date on which the brief of the appellee is filed or, if no timely brief is filed, the date on which such brief is due; or







`(B) if a cross-appeal is filed, not later than 300 days after the date on which the appellant files a brief in response to the issues presented by the cross-appeal or, if no timely brief is filed, the date on which such brief is due.






`(3)(A) If a petition is filed for a panel rehearing or rehearing by the court of appeals en banc following a decision by a panel of a court of appeals under paragraph (2), the court of appeals shall decide whether to grant the petition not later than 90 days after the date on which the petition is filed, unless a response is required.





`(B) If a response to a petition is required under subparagraph (A), a court of appeals shall decide whether to grant the petition not later than 90 days after the date on which the response is filed or, if no timely response is filed, the date on which the response is due.





`(C) If a panel rehearing is granted, the panel shall make a determination of the appeal on rehearing not later than 120 days after the date on which the order granting a panel rehearing is entered. No second or successive petition for panel rehearing shall be allowed.





`(D) If rehearing en banc is granted, the court of appeals shall make a final determination of the appeal not later than 180 days after the date on which the order granting rehearing en banc is entered.





`(4) If a court of appeals fails to comply with the requirements of this subsection, the State may petition the Supreme Court, or a justice thereof, for a writ of mandamus to enforce the requirements of this subsection.





`(5) The time limitations in this subsection shall apply in all proceedings in a court of appeals on review of a district court's determination of an application for a writ of habeas corpus, including any such proceedings in a court of appeals following a remand by the Supreme Court for further proceedings.





`(6) In proceedings following remand in a court of appeals, the time limit specified in paragraph (2) shall begin on the date the remand is ordered if further briefing is not required in the court of appeals. If there is further briefing in the court of appeals, the time limit specified in paragraph (2) shall begin on the date on which a responsive brief is filed or, if no timely responsive brief is filed, from the date on which such brief is due.





`(7) The failure of a court to meet or comply with a time limitation under this subsection shall not be a ground for granting relief from a judgment of conviction or sentence, nor shall the time limitations under this subsection be construed to entitle a capital 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) Finality of Determination- Section 2244(b)(3)(E) of title 28, United States Code, is amended by striking `the subject of a petition' and all that follows and inserting the following: `reheard in the court of appeals or reviewed by writ of certiorari.'.

SEC. 9. CAPITAL CASES.



(a) Scope of Review- Chapter 154 of title 28, United States Code, is amended by striking section 2264 and inserting the following:

`Sec. 2264. Scope of Federal review



`(a) In General- Except as provided in subsection (b), a court, justice, or judge shall not have jurisdiction to consider any claim relating to the judgment or sentence in an application covered under this chapter.


`(b) Exception- A court, justice, or judge has jurisdiction to consider an application under this chapter if--



`(1) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or





`(2) both--






`(A) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and







`(B) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.'.





(b) Time Limits- Section 2266(b)(1)(A) of title 28, United States Code, is amended by striking `180 days' and inserting `15 months'.


(c) Review by Attorney General-



(1) IN GENERAL- Section 2261(b) of title 28, United States Code, is amended--






(A) by striking `(b) This chapter is applicable if a State establishes' and inserting the following:





`(b) This chapter is applicable if--



`(1) the Attorney General of the United States certifies that a State has established';






(B) in the first sentence, by striking the period at the end and inserting a semicolon;







(C) by striking `The rule of court or statute must provide standards' and inserting the following:






`(2) the court, statute, or other agency provides standards';






(D) by striking the period at the end and inserting `; and'; and







(E) by adding at the end the following:






`(3) the order required under subsection (c) is entered on or after the effective date of the Attorney General's certification under section 2267.'.





(2) TECHNICAL AND CONFORMING AMENDMENTS- Section 2265(a) of title 28, United States Code, is amended--






(A) by striking `(a) For purposes' and inserting the following:





`(a)(1) For purposes';




(B) by striking `This chapter shall apply, as provided in this section, in relation to a State unitary review procedure if the State establishes' and inserting the following:





`(2) This chapter shall apply, as provided in this section, in relation to a State unitary review procedure if--



`(A) the Attorney General of the United States certifies that a State has established';






(C) by striking `or by statute' and inserting `, by statute, or by agency rule';







(D) by striking the period after `proceedings' and inserting a semicolon;







(E) by striking `The rule of court or statute must provide' and inserting the following:






`(B) the rule of the court, the statute, or the agency rule provides';






(F) by striking the period at the end and inserting `; and'; and







(G) by adding at the end the following:






`(C) the order required under subsection (b) is entered on or after the effective date of the Attorney General's certification under section 2267.'.




(d) Judicial Review- Chapter 154 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 2267. Judicial Review



`(a) In General- If requested by the chief law enforcement officer of a State, the Attorney General of the United States shall determine whether the State has established a qualifying mechanism for the purpose of section 2261(b)(3) or 2265(a)(2)(C), and, if so, the date on which the mechanism was established. The date the mechanism was established shall be the effective date of the certification.


`(b) Regulations- The Attorney General shall promulgate regulations to implement the certification procedure under subsection (a).


`(c) Review of Certification-



`(1) IN GENERAL- The Attorney General's determination of whether to certify a State under this section is subject to review exclusively as provided under chapter 158.





`(2) VENUE- The Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over matters under paragraph (1), subject to review by the Supreme Court under section 2350.





`(3) STANDARD OF REVIEW- The Attorney General's determination of whether to certify a State under this section shall be conclusive unless manifestly contrary to the law and an abuse of discretion.'.




(e) Clerical Amendments- The table of sections for chapter 154 of title 28, United States Code, is amended--



(1) by striking the item related to section 2264 and inserting the following:



`2264. Scope of Federal review.';


and





(2) by adding at the end the following:



`2267. Judicial review.'.

SEC. 10. CLEMENCY AND PARDON DECISIONS.



(a) In General- Chapter 85 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 1370. State clemency and pardon decisions



`(a) In General- Except as provided under subsection (b), and notwithstanding any other provision of law, no Federal court shall have jurisdiction to hear any cause or claim arising from the exercise of a State's executive clemency or pardon power, or the process or procedures used under such power.


`(b) Exception- This section does not affect the jurisdiction of the Supreme Court to review any decision of the highest court of a State that involves a cause or claim arising from the exercise of a State's executive clemency or pardon power, or the process or procedures used under such power.'.


(b) Clerical Amendment- The table of sections for chapter 85 of title 28, United States Code, is amended by adding at the end the following:



`1370. State clemency and pardon decisions.'.



SEC. 11. EX PARTE FUNDING REQUESTS.



Section 408(q)(9) of the Controlled Substances Act (21 U.S.C. 848(q)(9)) is amended--



(1) by striking `(9) Upon' and inserting the following: `(9) (A) Upon';





(2) by striking the last two sentences and inserting the following: `An application for services under this paragraph shall be decided by a judge other than the judge presiding over the post conviction proceeding under section 2254 or 2255 of Title 28, United States Code, seeking to vacate or set aside a death sentence. Any amounts authorized to be paid under this paragraph shall be disclosed to the public immediately.'; and





(3) by adding at the end the following:





`(B) No ex parte proceeding, communication, or request may be considered in a post-conviction action pursuant to this section, except to the extent necessary to protect any confidential-communications privilege between the defendant and post-conviction counsel. The court shall not grant an application for an ex parte proceeding, communication, or request unless the application has been served upon the respondent and the court has allowed the respondent a reasonable opportunity to answer the application. All proceedings, communications, or requests conducted pursuant to this section shall be transcribed and made a part of the record available for appellate review.'.



SEC. 12. CRIME VICTIMS' RIGHTS.



Section 3771(b) of title 18, United States Code, is amended by adding at the end the following: `A crime victim shall also be afforded the rights established for crime victims by this section in a Federal habeas corpus proceeding arising out of a State conviction.'.

SEC. 13. TECHNICAL CORRECTIONS.



(a) Appeal- Section 2253(c)(1) of title 28, United States Code, is amended by striking `circuit justice or judge' and inserting `district or circuit judge'.


(b) Federal Custody- Section 2255 of title 28, United States Code, is amended by designating the 8 undesignated paragraphs as subsections (a) through (h), respectively.

SEC. 14. APPLICATION TO PENDING CASES.



(a) In General- This Act and the amendments made by this Act shall apply to cases pending on and after the date of enactment of this Act.


(b) Time Limits- In a case pending on the date of enactment of this Act, if the amendments made by this Act establish a time limit for taking certain action the period of which began on the date of an event that occurred prior to the date of enactment of this Act, the period of such time limit shall instead begin on the date of enactment of this Act.
END



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