Page 245 - Ad Hoc Report June 2018
P. 245

 habeas cases and could not take on additional work.”943 She characterized the task of finding counsel to accept these cases as “extremely difficult.”944
The work of post-conviction review is a strain on private attorneys. “It’s very time consuming. If you take one of these cases it can consume your practice. A couple of the panel attorneys essentially lost their practices because they do capital habeas work.”945 Attorneys that accept habeas appointments also face “significant changes in the law rendering representation of habeas petitioners more challenging, and increased responsibilities associated with representing a condemned prisoner, especially after an execution date is set.”946 On top of those challenges are the scarce resources granted to post-conviction review, resulting in fewer attorneys willing
to accept or become qualified to accept habeas cases. One federal judge told this Committee that “Voucher cuts, delayed payments, and relatively low hourly rates may discourage these attorney[s] from continuing to represent capital defendants and may deter new attorneys from engaging in this specialty.” 947 As noted immedi- ately above, this means that the few attorneys qualified and willing to be appointed to post-conviction review already have full caseloads. One of the regional HAT attorneys told the Committee that, “Within Texas, most of the lawyers who are really qualified and understand the mission of federal habeas can’t take any more cases. We are full, so we are looking out-of-state.”948
The difficulty in locating qualified counsel willing to accept § 2254 or § 2255 cases is not limited to Texas. A case budgeting attorney for the Ninth Circuit told the Committee that “[t]he number of qualified CJA attorneys willing to accept repre- sentation of a capital habeas petitioner has decreased over the past two decades.
As a result, district courts within and outside the Ninth Circuit have had difficulty finding qualified CJA attorneys.”949 One of the reasons for this included “counsel’s inability to obtain adequate resources in some districts or circuits.”950 Indeed, the Committee was told that, “most private lawyers at this point won’t take on a case unless they’re accompanied by a Capital Habeas Unit of a federal defender for the reason that...they’re not going to get the resources paid.”951
The Director of the ABA’s Death Penalty Representation Project, Emily
943 Id.
944 Id.
945 SusanOtto,FPD,W.D.Ok.,PublicHearing—SantaFe,N.M.,Panel1,Tr.,at38.
946 KristineFox,CircuitCaseBudgetingAtty.,9thCir.,PublicHearing—SanFrancisco,Cal.,Panel1, Writ. Test., at 2.
947 JudgeMarciaCrone,E.D.Tex.,PublicHearing—Birmingham,Ala.,Panel1,Tr.,at2.
948 RichardBurr,TexasRegionalHabeasandAssistanceProject,PublicHearing—Birmingham,Ala., Panel 3, Tr., at 32.
949 KristineFox,CircuitCaseBudgetingAtty.,9thCir.,PublicHearing—SanFrancisco,Cal.,Panel1, Writ. Test., at 2.
950 Id.
951 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Tr., at 33.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 201
 States unless approved by the Conference itself.
 
















































































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