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is quite different, a number of problems are common to all.
There are several statutes that govern the provision of counsel in pre- and
post-conviction capital cases. Under 18 U.S.C. § 3005, a defendant charged with a federal capital offense, a “direct death” prosecution, is entitled to the appointment of two trial attorneys, at least one of whom should “be learned in the law applicable to capital cases.” The statute states that, “In assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organiza- tion, or, if no such organization exists in the district, of the Administrative Office of the United States Courts.”905 This provision is unique to “direct death” cases.
Post-conviction litigation, commonly referred to as “habeas corpus,”906 begins when the defendant’s capital sentence has become final upon the conclusion of any direct appeals. Under 28 U.S.C. § 2254, a defendant convicted of a state capital crime can, after exhausting state remedies, submit a habeas corpus petition to a federal district court to consider violations “of the Constitution or laws or treaties of the United States.”907 28 U.S.C. §2255 provides the basis for a habeas petition908 when
a defendant has been convicted of a federal capital crime. Habeas petitions allow petitioners to argue claims that,
the Government failed to prosecute them according to constitutionally prescribed rules, or that the jurors who convicted and sentenced them harbored biases that interfered with their ability to be fair, or that their trial lawyers neglected to undertake the work necessary to defend them properly against capital charges or to persuade a jury that they did not deserve a sentence of death.909
The right to counsel in capital habeas cases, as the Supreme Court has held that in habeas review, “[t]he complexity of our jurisprudence in this area...makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law.”910 Associate Justice Harry Blackmun called habeas corpus proceedings, with all their procedural requirements, a “Byzantine morass.”911
905 Id.§3005.
906 TherighttohabeascorpusisaconstitutionalrightthattheSupremeCourthasruledisdistinct from any statutory scheme. However, as post-conviction proceedings are generally referred to and function as a habeas review, and a separate habeas petition is rarely filed, proceedings under § 2254 and § 2255 will be referred to as “habeas” here.
907 28U.S.C.§2254.
908 Again,whilethisstatuteprovidesforthefilingofamotiontosetasideorvacateaconvictionor sentence, the petitions to do so are still commonly referred to as habeas petitions.
909 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 2.
910 McFarlandv.Scott,512U.S.849,855-56(1994)(citationsomitted).
911 Colemanv.Thompson,501U.S.722,759(1991)(Blackmun,J.,dissenting).PleaseseeAppendixH for charts to show the tortuous path these cases generally take.
No recommendation presented herein represents 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 the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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