Page 257 - Ad Hoc Report June 2018
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 9.4 Opt-in and Prop 66— Future Concerns
9.4.1 State “Opt‐in” Under Federal Law
As discussed earlier, the Antiterrorism and Effective Death Penalty Act of 1996 created special fast-track procedures for capital habeas cases if the state “has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction pro- ceedings.”997 Thus far, no state has established its eligibility for these fast-track pro- cedures. However, Texas and Arizona have applied for opt-in certification.
No decision has been made on certification for either state. The Final Regulations require DOJ to publish notification of applications in the Federal Register and make the applications available on the Internet. A public comment period is also required before final certification. If DOJ does certify that a state
has established mechanisms for the appointment and compensation of compe- tent counsel and the provision of adequate resources to them, that decision can be appealed to the District of Columbia Court of Appeals for a de novo review.
Under opt-in, a petitioner has 180 days to file a petition rather than one year. This time begins to run when the direct appeal is final. If state habeas counsel has not filed a petition promptly upon conclusion of direct appeal, the petitioner may have even less time. Counsel appointed to the case will have to complete not only an investigation into the underlying case, but also an investigation into whether the state habeas lawyer provided effective representation. This work is difficult to com- plete even within a year; with half that time, the task will be Herculean.
The Federal Defender in Arizona estimated that 37 of their active capital habeas corpus cases would be directly impacted by opt-in certification. There are nine addi- tional capital habeas corpus cases in Arizona staffed by attorneys from other CHUs or CJA panel members. All will need training and advice on litigating these cases under opt-in. Additionally, the District of Arizona FPDO anticipates that if the state obtains certification and opt-in becomes effective, the FPDO could receive as many as 47 new cases over the next five years. The Arizona CHU does not have a suffi- cient number of qualified attorneys to handle a surge in filings of this magnitude. The federal defender estimates he would have to double the current size of his CHU. Specifically, the office would need 48 additional staff to work these extra cases: 16 attorneys, eight fact investigators, eight mitigation investigators, eight paralegals and eight assistant paralegals. In Texas, experts project that over 200 cases are potentially impacted by opt-in, the vast majority of which are already in federal court.
The impacts are not just on the attorneys; there will be increased pressure
997 28U.S.C.§§2261−2266.
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 213
 States unless approved by the Conference itself.
 






















































































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