Page 242 - Ad Hoc Report June 2018
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the District Courts and $15,000 in the Court of Appeals.932 The Committee was told, “These presumptive caps, coupled with a history in some cases of actually capping counsel’s fees at these amounts, have operated as a deterrent to competent counsel accepting appointments in capital habeas cases.”933
As previously discussed, presumptive caps limit effective representation by panel attorneys and discourage zealous advocacy in any type of case. The caps for capital representation are onerous “especially in Texas, because of the historically poor representation in state habeas proceedings and the Supreme Court’s deci- sion in Martinez v. Ryan, 132 S.Ct. 1309 (2012), allowing federal habeas counsel to raise new ineffective assistance of trial counsel claims in federal court” if they can show that state habeas counsel were ineffective in not raising those claims.934 But that right is hollow if the lawyers bringing those claims in federal court don’t have the resources to mount an effective defense.935 Caps in some circuits but not others ensure that defendants within a national federal system receive varying levels of resources and representation. This is anathema to any criminal justice system based on due process and equal protection under the law, especially since defendants’ lives are at stake.
9.3.2 Failings Specifically in Capital Habeas Representation
The Committee heard a significant amount of testimony about the failure of the CJA to provide effective, quality representation for defendants in capital habeas pro- ceedings, whether the habeas petitions were submitted under § 2254 or § 2255. The Committee agrees with a former DSO employee who testified, “I’ve always felt in my experience working in the program for all these years that death penalty representa- tion puts into high relief problems that exist throughout the entire system.”936
Timeliness of appointment
As mentioned above, judges who lack experience with capital habeas representa- tion often take longer to make crucial decisions, beginning with the appointment of counsel. The expedient appointment of qualified and knowledgeable counsel can be the difference between a successful habeas petition and a death sentence. As Ms. Friedman explained, “[M]ost troubling are the failures of some appointing courts
932 UnitedStatesCourtofAppealsfortheFifthCircuit,CJAFrequentlyAskedQuestions,http://www. (last visited October 5, 2017).
933 RichardBurr,TexasRegionalHabeasandAssistanceProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 6 n.6.
934 MaureenFranco,FPD,W.D.Tex.,PublicHearing—SantaFe,N.M.,Panel2,Writ.Test.,at4. 935 Id.
936 StevenG.Asin,FormerDeputyAssistantDirector,DSO,AdministrativeOfficeoftheUnitedStates Courts, Public Hearing—Philadelphia, Pa., Panel 7, Tr., at 11.
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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