United States. Congress. House. Committee on the J.

Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

. (page 2 of 51)
Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 2 of 51)
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24 States is removed, where the movant was prevented

25 from making a motion by such governmental action.

•HR 3 IH



12



9

1 "(3) The time at which the right asserted was

2 initially recognized by the Supreme Court, where the

3 right has been newly recognized by the Court and is

4 retroactively applicable.

5 "(4) The time at which the factual predicate of

6 the claim or claims presented could have been dis-

7 covered through the exercise of reasonable dili-

8 gence.".

9 CHAPTER 2— SPECIAL PROCEDURES FOR

10 COLLATERAL PROCEEDINGS IN CAP-

11 ITAL CASES

1 2 SEC. 106. DEATH PENALTY LITIGATION PROCEDURES.

13 (a) In General. — Title 28, United States Code, is

14 amended by inserting the following new chapter after

15 chapter 153:

16 "CHAPTER 154— SPECIAL HABEAS CORPUS

17 PROCEDURES IN CAPITAL CASES

"Sec.

"2256. Prisoners in State custody subject to capital sentence; appointment of
counsel; requirement of rule of court or statute; procedures for
appointment.

"2257. Mandatory stay of execution; duration; limits on stays of execution; suc-
cessive petitions.

"2258. Filing of habeas corpus petition; time requirements; tolling rules.

"2259. Certificate of probable cause inapplicable.

"2260. Application to State unitary review procedures.

"2261. Limitation periods for determining petitions.

"2262. Rule of construction.



13



10

1 '^§2256. Prisoners in State custody subject to capital

2 sentence; appointment of counsel; re-

3 quirement of rule of court or statute; pro-

4 cedures for appointment

5 "(a) This chapter shall apply to eases arising under

6 section 2254 brought by prisoners in State custody who

7 are subject to a capital sentence. It shall apply only if the

8 provisions of subsections (b) and (c) are satisfied.

9 "(b) This chapter is applicable if a State establishes

10 by rule of its court of last resort or by statute a mecha-

11 nism for the appointment, compensation and payment of

12 reasonable litigation expenses of competent counsel in

13 State postconviction proceedings brought by indigent pris-

14 oners whose capital convictions and sentences have been

15 upheld on direct appeal to the court of last resort in the

16 State or have otherwise become final for State law pur-

17 poses. The rule of court or statute must provide standards

18 of competency for the appointment of such counsel.

19 "(c) Any mechanism for the appointment, compensa-

20 tion and reimbursement of counsel as provided in sub-

21 section (b) must offer counsel to all State prisoners under

22 capital sentence and must provide for the entry of an

23 order by a court of record: (1) appointing one or more

24 counsel to represent the prisoner upon a finding that the

25 prisoner is indigent and accepted the offer or is unable

26 competently to decide whether to accept or reject the offer;

•HR 3 m



14

11

1 (2) finding, after a hearing if necessary, that the prisoner

2 rejected the offer of counsel and made the decision with

3 an understanding of its legal consequences; or (3) denying

4 the appointment of counsel upon a finding that the pris-

5 oner is not indigent.

6 "(d) No counsel appointed pursuant to subsections

7 (b) and (c) to represent a State prisoner under capital

8 sentence shall have previously represented the prisoner at

9 trial or on direct appeal in the case for which the appoint-

10 ment is made unless the prisoner and counsel expressly

1 1 request continued representation.

12 "(e) The ineffectiveness or incompetence of counsel

13 during State or Federal collateral postconviction proceed-

14 ings in a capital case shall not be a ground for relief in

15 a proceeding arising under section 2254 of this chapter.

16 This limitation shall not preclude the appointment of dif-

17 ferent counsel, on the court's own motion or at the request

18 of the prisoner, at any phase of State or Federal

19 postconviction proceedings on the basis of the ineffective-

20 ness or incompetence of counsel in such proceedings.

21 **§ 2257. Mandatory stay of execution; duration; limits

22 on stays of execution; successive peti-

23 tions

24 "(a) Upon the entry in the appropriate State court

25 of record of an order under section 2256(c), a warrant

•HR 3 IH



15

12

1 or order setting an execution date for a State prisoner

2 shall be stayed upon application to any court that would

3 have jurisdiction over any proceedings filed under section

4 2254. The application must recite that the State has in-

5 voked the postconviction review procedures of this chapter

6 and that the scheduled execution is subject to stay.

7 "(b) A stay of execution granted pursuant to sub-

8 section (a) shall expire if —

9 "(1) a State prisoner fails to file a habeas cor-

10 pus petition under section 2254 within the time re-

1 1 quired in section 2258, or fails to make a timely ap-

12 plication for court of appeals review following the de-

13 nial of such a petition by a district court;

14 "(2) upon completion of district court and court

15 of appeals review under section 2254 the petition for

16 reUef is denied and (A) the time for filing a petition

17 for certiorari has expired and no petition has been

18 filed; (B) a timely petition for certiorari was filed

19 and the Supreme Court denied the petition; or (C)

20 a timely petition for certiorari was filed and upon

21 consideration of the case, the Supreme Court dis-

22 posed of it in a manner that left the capital sentence

23 undisturbed; or

24 "(3) before a court of competent jurisdiction, in

25 the presence of counsel and after having been ad-

•HR 3 m



16



13

1 vised of the consequences of his decision, a State

2 prisoner under capital sentence waives the right to

3 pursue habeas corpus review under section 2254.

4 "(c) If one of the conditions in subsection (b) has

5 occurred, no Federal court thereafter shall have the au-

6 thority to enter a stay of execution or grant relief in a

7 capital case unless —

8 "(1) the basis for the stay and request for relief

9 is a claim not previously presented in the State or

10 Federal courts;

11 "(2) the failure to raise the claim is (A) the re-

12 suit of State action in violation of the Constitution

13 or laws of the United States; (B) the result of the

14 Supreme Court recognition of a new Federal right

15 that is retroactively applicable; or (C) based on a

16 factual predicate that could not have been discovered

17 through the exercise of reasonable diligence in time

18 to present the claim for State or Federal

19 postconviction review; and

20 "(3) the facts underlying the claim would be

21 sufficient to establish by clear and convincing evi-

22 dence that but for constitutional error, no reasonable

23 fact finder would have found the petitioner guilty of

24 the underlying offense or eligible for the death pen-

25 alty under State law.

•HR 3 IH



17



14

1 "(d) Notwithstanding any other provision of law, no

2 Federal district court or appellate judge shall have the au-

3 thority to enter a stay of execution, issue injunctive relief,

4 or grant any equitable or other relief in a capital case on

5 any successive habeas petition (or other action which fol-

6 lows the final determination of a first habeas corpus peti-

7 tion) unless the court first determines the petition or other

8 action does not constitute an abuse of the writ. This deter-

9 mination shall be made only by the district judge or appel-

10 late panel who adjudicated the merits of the original ha-

1 1 beas petition (or to the district judge or appellate panel

12 to which the case may have been subsequently assigned

13 as a result of the unavailabihty of the original court or

14 judges). In the Federal courts of appeal, a stay may issue

15 pursuant to the terms of this provision only when a major-

16 ity of the original panel or majority of the active judges

17 determines the petition does not constitute an abuse of

1 8 the writ.

19 **§2258. Filing of habeas corpus petition; time re-

20 quirements; tolling rules

21 "Any petition for habeas corpus relief under section

22 2254 must be filed in the appropriate district court within

23 one hundred and eighty days from the filing in the appro-

24 priate State court of record of an order under section



•HR 3 IH



18

15

1 2256(c). The time requirements established by this section

2 shall be tolled —

3 "(1) from the date that a petition for certiorari

4 is filed in the Supreme Court until the date of final

5 disposition of the petition if a State prisoner files

6 the petition to secure review by the Supreme Court

7 of the affirmance of a capital sentence on direct re-

8 view by the court of last resort of the State or other

9 final State court decision on direct review;

10 "(2) during any period in which a State pris-

11 oner under capital sentence has a properly filed re-

12 quest for postconviction review pending before a

13 State court of competent jurisdiction; if all State fil-

14 ing rules are met in a timely manner, this period

15 shall run continuously from the date that the State
1^ prisoner initially files for postconviction review until

17 final disposition of the case by the highest court of

18 the State, but the time requirements established by

19 this section are not tolled during the pendency of a

20 petition for certiorari before the Supreme Court ex-

21 cept as provided in paragraph (1); and

22 "(3) during an additional period not to exceed

23 sixty days, if (A) a motion for an extension of time

24 is filed in the Federal district court that would have

25 proper jurisdiction over the case upon the fiUng of

•HR 8 IH



19

16

1 a habeas corpus petition under section 2254; and

2 (B) a showing of good cause is made for the failure

3 to file the habeas corpus petition within the time pe-

4 riod established by this section.

5 **§ 2259. Certificate of probable cause inapplicable

6 "The requirement of a certificate of probable cause

7 in order to appeal from the district court to the court of

8 appeals does not apply to habeas corpus cases subject to

9 the provisions of this chapter except when a second or suc-

10 cessive petition is filed.

11 **§2260. Application to State unitary review proce-

12 dure

13 "(a) For purposes of this section, a 'unitary review'

14 procedure means a State procedure that authorizes a per-

15 son under sentence of death to raice, in the course of di-

16 rect review of the judgment, such claims as could be raised

17 on collateral attack. The provisions of this chapter shall

18 apply, as provided in this section, in relation to a State

19 unitary review procedure if the State estabhshes by rule

20 of its court of last resort or by statute a mechanism for

21 the appointment, compensation and payment of reasonable

22 litigation expenses of competent counsel in the unitary re-
-^3 view proceedings, including expenses relating to the litiga-

24 tion of collateral claims in the proceedings. The rule of



•HR S IH



20

17

1 court or statute must provide standards of competency for

2 the appointment of such counsel.

3 "(b) A unitary review procedure, to quaUfy under this

4 section, must include an offer of counsel following trial

5 for the purpose of representation on unitary review, and

6 entry of an order, as provided in section 2256(c), concem-

7 ing appointment of counsel or waiver or denial of appoint-

8 ment of counsel for that purpose. No counsel appointed

9 to represent the prisoner in the unitary review proceedings

10 shall have previously represented the prisoner at trial in

11 the case for which the appointment is made unless the

12 prisoner and counsel expressly request continued represen-

13 tation.

14 "(c) Sections 2257, 2258, 2259, and 2261 shall apply

15 in relation to cases involving a sentence of death from any

16 State having a unitary review procedure that qualifies

17 under this section. References to State 'post-conviction re-

18 view' and 'direct review' in those sections shall be under-

19 stood as referring to unitary review under the State proce-

20 dure. The references in sections 2257(a) and 2258 to 'an

21 order under section 2256(c)' shall be understood as refer-

22 ring to the post-trial order under subsection (b) concern-

23 ing representation in the unitary review proceedings, but

24 if a transcript of the trial proceedings is unavailable at

25 the time of the filing of such an order in the appropriate



21

18

1 State court, then the start of the one hundred and eighty

2 day hmitation period under section 2258 shall be deferred

3 until a transcript is made available to the prisoner or his

4 counsel.

5 '^§2261. Limitation periods for determining petitions

6 "(a)(1) A Federal district court shall determine such

7 a petition or motion within 60 days of any argument heard

8 on an evidentiary hearing, or where no evidentiary hearing

9 is held, within 60 days of any final argument heard in

10 the case.

11 "(2) (A) The court of appeals shall determine any ap-
y 12 peal relating to such a petition or motion within 90 days

13 after the filing of any reply brief or within 90 days after

14 such reply brief would be due. For purposes of this provi-

15 sion, any reply brief shall be due within 14 days of the

16 opposition brief.

17 "(B) The court of appeals shall decide any petition

1 8 for rehearing and or request by an appropriate judge for

19 rehearing en banc within 20 days of the filing of such a

20 petition or request unless a responsive pleading is required

21 in which case the court of appeals shall decide the applica-

22 tion within 20 days of the filing of the responsive pleading.

23 If en banc consideration is granted, the en banc court shall

24 determine the appeal within 90 days of the decision to

25 grant such consideration.

•HR 3 IH



22



19

1 "(3) The time limitations contained in paragraphs

2 (1) and (2) may be extended only once for 20 days, upon

3 an express good cause finding by the court that the inter-

4 ests of justice warrant such a one-time extension. The spe-

5 cific grounds for the good cause finding shall be set forth

6 in writing in any extension order of the court.

7 "(b) The time limitations under subsection (a) shall

8 apply to an initial petition or motion, and to any second

9 or successive petition or motion. The same limitations

10 shall also apply to the re-determination of a petition or

1 1 motion or related appeal following a remand by the court

12 of appeals or the Supreme Court for further proceedings,

13 and in such a case the Umitation period shall run from

14 the date of the remand.

15 "(c) The time Umitations under this section shall not

16 be construed to entitle a petitioner or movant to a stay

17 of execution, to which the petitioner or movant would oth-

18 erwise not be entitled, for the purpose of Utigating any

19 petition, motion, or appeal.

20 "(d) The failure of a court to meet or comply with

21 the time limitations under this section shall not be a

22 ground for granting relief from a judgment of conviction

23 or sentence. The State or Government may enforce the

24 time limitations under this section by applying to the court

25 of appeals or the Supreme Court for a writ of mandamus.

•HR 3 IH



23

20

1 "(e) The Administrative Office of United States

2 Courts shall report annually to Congress on the compU-

3 anee by the courts with the time limits established in this

4 section.

5 "(f) The adjudication of any petition under section

6 2254 of this title that is subject to this chapter, and the

7 adjudication of any motion under section 2255 of this title

8 by a person under sentence of death, shall be. given prior-

9 ity by the district court and by the court of appeals over

10 all noncapital matters.

1 1 *"§ 2262. Rule of construction

12 "This chapter shall be construed to promote the expe-

13 ditious conduct and conclusion of State and Federal court

14 review in capital cases.".

15 (b) Clerical Amendment. — The table of chapters

16 at the beginning of part VI of title 28, United States Code,

17 is amended by inserting after the item relating to chapter

18 153 the following new item:

''154. Special habeas corpus procedures in capital cases 2256".

19 CHAPTER 3— FUNDING FOR LITIGATION

20 OF FEDERAL HABEAS CORPUS PETI-

21 TIONS IN CAPITAL CASES

22 SEC. 107. FUNDING FOR DEATH PENALTY PROSECUTIONS.

23 Part E of title I of the Omnibus Crime Control and

24 Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is

25 amended by adding at the end the following new section:

•HR 3 IH



24



21

1 "Sec. 515. Notwithstanding any other provision of

2 this subpart, the Director shall provide grants to the

3 States, from the funding allocated pursuant to section

4 511, for the purpose of supporting litigation pertaining to

5 Federal habeas corpus petitions in capital cases. The total

6 funding available for such grants within any fiscal year

7 shall be equal to the funding provided to capital resource

8 centers, pursuant to Federal appropriation, in the same

9 fiscal year.".

10 Subtitle B— Federal Death Penalty

11 Procedures Reform

12 SEC. 111. FEDERAL DEATH PENALTY PROCEDURES RE-

13 FORM.

14 (a) In General. — Subsection (e) of section 3593 of

15 title 18, United States Code, is amended by striking

16 "Based *upon this consideration" and all that follows

17 through the end of such subsection and inserting the fol-

18 lowing: "The jury, or if there is no jury, the court, shall

19 then consider whether the aggravating factor or factors

20 found to exist outweigh any mitigating factors. The jury,

21 or if there is no jury, the court shall recommend a sen-

22 tence of death if it unanimously finds at least one aggra-

23 vating factor and no mitigating factor or if it finds one

24 or more aggravating factors which outweigh any mitigat-

25 ing factors. In any other case, it shall not recommend a

•HR 8 IH



25

22

1 sentence of death. The jury shall be instructed that it

2 must avoid any influence of sympathy, sentiment, passion,

3 prejudice, or other arbitrary factors in its decision, and

4 should make such a recommendation as the information

5 warrants. The jury shall be instructed that its rec-

6 ommendation concerning a sentence of death is to be

7 based on the aggravating factor or factors and any miti-

8 gating factors which have been found, but that the final

9 decision concerning the balance of aggravating and miti-

10 gating factors is a matter for the jury's judgment.".

11 (b) Conforming Amendment. — Section 3594 of

12 title 18, United States Code, is amended by striking "or

13 life imprisonment without possibility of release".

14 TITLE II— DETERRE^G GUN

15 CRIMES

16 SEC. 201. MANDATORY PRISON TERMS FOR CARRYING,

17 USING, OR DISCHARGING A FIREARM OR DE-
IS STRUCTIVE DEVICE DURING A STATE CRIME

19 THAT IS A SERIOUS VIOLENT FELONY OR SE-

20 RIOUS DRUG OFFENSE.

21 Section 924(c) of title 18, United Siates Code, is

22 amended to read as follows:

23 "(c)(l)(A)(i) A person who, during and in relation

24 to a serious violent felony or serious drug offense (includ-

25 ing a serious violent felony or serious drug offense that

•HR 3 IH



26



23

1 provides for an enhanced punishment if conunitted by the

2 use of a deadly or dangerous weapon or device) for which

3 the person may be prosecuted in a court of any State —

4 "(I) knowingly carries a firearm, shall, in addi-

5 tion to the sentence imposed for the serious violent

6 felony or serious drug offense, be sentenced to im-

7 prisonment for not less than 5 years;

8 "(II) knowingly uses a firearm, shall, in addi-

9 tion to the sentence imposed for the serious violent

10 felony or serious drug offense, be sentenced to im-

11 prisonment for not less than 10 years; or

12 "(III) discharges a firearm with the intent to

13 injure another person, shall, in addition to the sen-

14 tence imposed for the serious violent felony or seri-

15 ous drug offense, be sentenced to imprisonment for

16 not less than 30 years;

17 except that if the firearm is a machinegun or destructive

18 device or is equipped with a firearm silencer or firearm

19 muffler, the person shall, in addition to the sentence im-

20 posed for the serious violent felony or serious drug offense,

21 be sentenced to life imprisonment,

22 "(B) Subparagraph (A) shall not apply to the con-

23 duct of a person in defense of person or property during

24 the course of a crime committed by another person (in-

25 eluding the arrest or attempted arrest of such other per-

•HR 3 m



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24

1 son during or immediately after the commission of the

2 crime), unless the person engaged in or participated in

3 criminal conduct that gave rise to the criminal conduct

4 of such other person.

5 "(C) It is the intent of the Congress that —

6 "(i) this para,j?7aph shall be used to supplement

7 but not supplant the efforts of State and local pros-

8 ecutors in prosecuting serious violent felonies and

9 serious drug offenses that could be prosecuted under

10 State law; and

11 "(ii) the Attorney General shall give due def-

12 erence to the interest that a State or local prosecu-

13 tor has in prosecuting a person under State law.

14 "(2)(A)(i) A person who, during and in relation to

15 a crime of violence or drug trafficking crime (including

16 a crime of violence or drug trafficking crime that provides

17 for an enhanced punishment if committed by the use of

18 a deadly or dangerous weapon or device) for which the

19 person may be prosecuted in a court of the United

20 States—

21 "(I) knowingly carries a firearm, shall, in addi-

22 tion to the sentence imposed for the crime of vio-

23 lence or drug trafficking crime, be sentenced to im-

24 prisonment for not less than 5 years;



•HR 3 m



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25

1 "(II) knowingly uses a firearm, shall, in addi-

2 tion to the sentence imposed for the crime of vio-

3 lence or drug trafficking crime, be sentenced to im-

4 prisonment for not less than 10 years; or

5 "(III) discharges a firearm with the intent to

6 injure another person, shall, in addition to the sen-

7 tence imposed for the crime of violence or drug traf-

8 ficking crime, be sentenced to imprisonment for not

9 less than 20 years.

10 "(ii) A person who, during and in relation to a crime

11 of violence or drug trafficking crime (including a crime

12 of violence or drug trafficking crime that provides for an

13 enhanced punishment if committed by the use of a deadly

14 or dangerous weapon or device) for which the person may

15 be prosecuted in a court of the United States —

16 "(I) knowingly carries a short-barreled rifle,

17 short-barreled shotgun, or semiautomatic assault

18 weapon, shall, in addition to the sentence imposed

19 for the crime of violence or drug trafficking crime,

20 be sentenced to imprisonment for not less than 10

21 years;

22 "(II) knowingly uses a short-barreled rifle,

23 short-barreled shotgun, or semiautomatic assault

24 weapon, shall, in addition to the sentence imposed

25 for the crime of violence or drug trafficking crime,



29



26

1 be sentenced to imprisonment for not less than 15

2 years; or

3 "(III) discharges a short-barreled rifle, short-

4 barreled shotgun, or semiautomatic assault weapon

5 with the intent to injure another person, shall, in ad-

6 dition to the sentence imposed for the crime of vio-

7 lence or drug trafficking crime, be sentenced to im-

8 prisonment for not less than 25 years.

9 "(iii) A person who, during and in relation to a crime

10 of violence or drug trafficking crime (including a crime

11 of violence or drug trafficking crime that provides for an

12 enhanced punishment if committed by the use of a deadly

13 or dangerous weapon or device) for which the person may

14 be prosecuted in a court of the United States, knowingly

15 carries or knowingly uses a firearm that is a machinegun

16 or destructive device or is equipped with a firearm silencer

17 or firearm muffler, or discharges such a firearm with the

18 intent to injure another person, shall, in addition to the

19 sentence imposed for the crime of violence or drug traf-

20 ficking crime, be sentenced to imprisonment for not less



Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 2 of 51)