Page 244 - Ad Hoc Report June 2018
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requirement. Because it is not mandatory, district court judges are under no obliga- tion to accept federal defender, HAT counsel, or Capital Habeas Project’s recommen- dations for learned counsel, often resulting in the appointment of unqualified counsel and unnecessary delays.
Ms. Friedman told the Committee that attempts to assist in the timely appoint- ment of qualified counsel have not always been well-received, and that defendants suffer the consequences.
We have tried very hard in each one of the cases that comes along to find a cost-effective, qualified team ready to go within the time period, and
a judge can and has just said no....Not only does no reason have to be given for why they are not appointing the team, but they can wait....[T]he statute of limitations goes in these cases so quickly because they are so big and there’s no tolling provisions, statutory tolling provisions ... and if a judge wants to sit on that, he or she can and just eat into that statute.940
No defendant facing execution should receive less than the full amount of time the statute of limitations grants to prepare a habeas petition, and no defendant should be represented by less than qualified counsel. To do otherwise is to compro- mise due process in the federal criminal justice system.
Failure to Appoint Qualified Counsel
Finding Willing and Able Counsel
The first and most important step to effective representation in a post-conviction case is the appointment of qualified counsel, yet the Committee heard substantial testimony about the difficulty in finding experienced attorneys who are willing to accept § 2254 and § 2255 cases.
A district court judge told the Committee that when she needs to appoint private counsel to a post-conviction case, “[V]ery few of the attorneys on the CJA panel qualify as ‘learned counsel’ or are willing to accept capital cases.”941 A federal defender agreed, writing to the Committee that when asked to assist judges in find- ing qualified private counsel to handle federal capital habeas cases, she was shocked and dismayed that the judges, “did not have a list of qualified court-appointed attorneys to handle this type of highly technical and specialized litigation” to ensure timely appointment.942 “Additionally, it became readily apparent that the number of attorneys who are truly qualified and capable of handling this type of litigation were few and far between and were already burden[ed] with a pending caseload of capital
940 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Tr., at 16.
941 JudgeMarciaCrone,E.D.Tex.,PublicHearing—Birmingham,Ala.,Panel1,Writ.Test.,at8. 942 MaureenFranco,FPD,W.D.Tex.,PublicHearing—SantaFe,N.M.,Panel2,Writ.Test.,at4.
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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