Page 236 - Ad Hoc Report June 2018
P. 236

 192 2 0 1 7
§ 2255 allow defendants only one year to file motions attacking their convictions.916 Finally, § 3599(f ) also establishes that “[n]o ex parte proceeding, communica-
tion, or request may be considered” for “any investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant” unless “a proper showing is made concerning the need for confidentiality.” This provision may, therefore, require habeas counsel to disclose the theory of the case and defense strat- egy to both the judge and the government, while also requiring that habeas counsel, if the government objects, be forced to litigate for the funding for any third-party ser- vices while the one-year statute of limitations is running.
The Antiterrorism and Effective Death Penalty Act of 1996 enacted special fast- track procedures for capital habeas petitions brought under § 2254.917 These provi- sions include a shortened six-month (180 day) statute of limitations, limitations on review of unexhausted claims and petition amendments, and expedited review by the district and appellate courts. They are applicable only to § 2254 capital habeas petitions filed by prisoners in states that “opt in” by establishing a mechanism for the appointment and compensation of state post-conviction counsel. The responsibility for certifying a state for fast-track habeas review rests with the Attorney General of the United States. In 2013, the Attorney General finalized regulations to implement
a certification procedure.918 As of September 2017, Arizona and Texas have applied and their applications are pending. Such certification could put great strain on the already taxed federal resources to handle habeas petitions, as discussed below.
The Judicial Conference also has policy which governs capital representation. As noted above, federal capital trials require the appointment of two counsel, one of whom must be “learned.” Judicial Conference policy mandates that such “learned counsel” have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post-conviction review that, in combination with co-coun- sel, will assure high-quality representation.919 A court may appoint more than two attorneys when exceptional circumstances and good cause are shown. Under CJA Guidelines governing these trials, “[t]here is neither a statutory case compensation maximum for appointed counsel nor provision for review and approval by the chief judge of the circuit of the case compensation amount in capital cases.”920
916 28U.S.C.§2244(d)(1),28U.S.C.§2255(f);KristineFox,CircuitCaseBudgetingAtty.,9thCir., Public Hearing—San Francisco, Cal., Panel 1, Writ. Test., at 2. However, the statute of limitations may be tolled in § 2254 petitions for a defendant to return to state court where state claims have not been exhausted.
917 See28U.S.C.§§2261−2266(codifyingthefast-trackprocedures).
918 CertificationProcessforStateCapitalCounselSystems,78Fed.Reg.58183(Sept.23,2013)
(codified at 28 C.F.R. pt. 26(B)).
919 JamesR.Spencer,FederalDeathPenaltyCases:RecommendationsConcerningtheCostand Quality of Defense Representation, Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States (1998).
920 CJAGuideline§630.10.20(2014).
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.

   234   235   236   237   238