State Procedures for Appointment of Competent Counsel in Post-Conviction Review of Capital Sentences ( 2009 )

State Procedures for Appointment of Competent Counsel
in Post-Conviction Review of Capital Sentences
Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effec-
tive Death Penalty Act of 1996, and now codified as chapter 154 of title 28, U.S. Code,
may be construed to permit the Attorney General to exercise his delegated authority to
define the term “competent” within reasonable bounds and independent of the counsel
competency standards a state itself establishes, and to apply that definition in deter-
mining whether to certify that a state is eligible for special procedures in federal habe-
as corpus proceedings involving review of state capital convictions.
If the Attorney General chooses to establish a federal minimum standard of counsel
competency that state mechanisms must meet in order to qualify for certification, he
should do so in a manner that still leaves the states some significant discretion in es-
tablishing and applying their own counsel competency standards.
These statutory provisions may reasonably be construed to permit the Attorney General to
evaluate a state’s appointment mechanism—including the level of attorney compensa-
tion—to assess whether it is adequate for purposes of ensuring that the state mecha-
nism will result in the appointment of competent counsel.
December 16, 2009
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Statutory provisions originally enacted as section 107(a) of the Anti-
terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, § 107(a), 110 Stat. 1214, 1221 (1996), and now codified as
chapter 154 of title 28, U.S. Code, make expedited and other special
procedures available to state respondents in federal habeas corpus pro-
ceedings involving review of state capital convictions. Amendments to
chapter 154 enacted in 2006 condition the availability of these proce-
dures on the Attorney General’s certification that the state in question
has met certain requirements. See USA PATRIOT Improvement and
Reauthorization Act of 2005 (“PATRIOT Improvement Act”), Pub. L.
No. 109-177, § 507(c)(1), 120 Stat. 192, 250 (2006). Specifically, a state
is entitled to the special procedures only if the Attorney General deter-
mines, inter alia, that the state has established “a mechanism for the
appointment, compensation, and payment of reasonable litigation ex-
penses of competent counsel in state postconviction proceedings brought
by indigent [capital] prisoners,” and that the state “provides standards of
competency for the appointment of counsel in [such] proceedings.” 28
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State Procedures for Appointment of Competent Counsel
U.S.C. § 2265(a)(1)(A), (C) (2006); see also id. § 2261(b). Chapter 154
also authorizes the Attorney General to “promulgate regulations to im-
plement the certification procedure.” Id. § 2265(b).
Attorney General Mukasey published a final rule implementing this
certification procedure on December 11, 2008. Certification Process for
State Capital Counsel Systems, 73 Fed. Reg. 75,327 (Dec. 11, 2008)
(codified at 28 C.F.R. § 26.22 (2009)) (“2008 final rule”). That final rule
afforded the Attorney General very limited discretion in exercising his
certification responsibilities. In particular, the final rule required the
Attorney General to apply the counsel competency standards established
by the state itself in determining whether a state has established “a mech-
anism for the appointment, compensation, and payment of reasonable
litigation expenses of competent counsel,” 28 U.S.C. § 2265(a)(1)(A)
(emphasis added). See 73 Fed. Reg. at 75,330–32. In accord with this
approach, the examples that the final rule offered to illustrate its applica-
tion gave no indication that the Attorney General would have the authori-
ty to evaluate whether a state appointment mechanism could be expected
to ensure the appointment of counsel who qualify as competent under a
federal standard. Id. at 75,339 (codified at 28 C.F.R. § 26.22(d)) (setting
forth examples). Indeed, the promulgated final rule expressly omitted
the adjective “competent” found in the statutory requirement that the
state mechanism provide for the appointment of “competent counsel.”
28 C.F.R. § 26.22(a), 73 Fed. Reg. at 75,338. Similarly, the examples
offered in the rule regarding the compensation provided by the proposed
state mechanism indicated that so long as a state did not require appointed
counsel to act on a volunteer basis, the Attorney General would have no
authority to determine whether a state’s chosen compensation level would
ensure the appointment of competent counsel. 28 C.F.R. § 26.22(b) (set-
ting forth examples).
A federal district court enjoined the rule from taking effect until the
Department of Justice provided an additional comment period of at least
thirty days and published a response to any comments received during
that period. Habeas Corpus Res. Ctr. v. Dep’t of Justice, No. C 08-2649
CW, 2009 WL 185423, at *10 (N.D. Cal. Jan. 20) (order granting motion
for preliminary injunction). Acting Attorney General Filip thereafter
instituted a new comment period that ended on April 6, 2009. 74 Fed.
Reg. 6,131 (Feb. 5, 2009). Many of the comments received during this
period took issue with the final rule, with a number of the comments
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33 Op. O.L.C. 402 (2009)
contending that the rule unduly cabined the Attorney General’s discretion
in exercising his certification authority.
You have asked our Office whether the relevant statutory provisions
require you to follow the approach taken in the 2008 final rule. After
carefully considering this question, we conclude that they do not. In our
view, these provisions may be construed to permit you to exercise your
delegated authority to define the term “competent” within reasonable
bounds and independent of the competency standards a state itself estab-
lishes, and to apply that definition in making your certification determina-
tions. If you choose to establish a federal minimum standard of counsel
competency that state mechanisms must meet in order to qualify for
certification, however, you should do so in a manner that still leaves the
states some significant discretion in establishing and applying their own
counsel competency standards. We further conclude that the statutory
provisions in question may reasonably be construed to permit you to
evaluate a state’s appointment mechanism—including the level of attor-
ney compensation—to assess whether it is adequate for purposes of ensur-
ing that the state mechanism will result in the appointment of competent
counsel.
I.
As originally enacted in 1996 (see AEDPA, Pub. L. No. 104-132,
§ 107(a)), chapter 154 of title 28 entitled a state to the advantages of
expedited federal habeas procedures in capital cases 1 if it “establishe[d]
by statute, rule of its court of last resort, or by another agency authorized
by State law, a mechanism for the appointment, compensation, and pay-
ment of reasonable litigation expenses of competent counsel in State post-
conviction proceedings brought by indigent prisoners whose capital
convictions and sentences have been upheld on direct appeal to the court
of last resort in the State or have otherwise become final for State law
1 Such advantages included, for example, a shorter statute of limitations for death-
sentenced inmates filing their federal habeas petitions (six months instead of one year),
strict deadlines for federal courts ruling on such petitions, limitations on stays of execu-
tion, and tightened procedural default rules. See 28 U.S.C. §§ 2262–2264, 2266 (2000);
Spears v. Stewart, 283 F.3d 992, 1009 (9th Cir. 2002). When Congress amended chapter
154 in 2006, see infra pp. 405–406, it changed these advantages slightly in ways that are
not relevant here.
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State Procedures for Appointment of Competent Counsel
purposes.” 28 U.S.C. § 2261(b) (2000). Chapter 154 further provided
that the state “rule of court or statute must provide standards of compe-
tency for the appointment of such counsel.” Id.
For almost a decade thereafter, federal courts, in the context of adju-
dicating federal habeas petitions brought by indigent state prisoners who
had been sentenced to death, regularly engaged in an independent review
of whether the state respondent had satisfied the competent counsel
appointment preconditions set forth in chapter 154. See, e.g., infra notes
5 & 8.
In 2006, however, Congress enacted section 507(c)(1) of the PATRIOT
Improvement Act. Pursuant to these amendments, a federal court enter-
taining a habeas petition by a state capital prisoner is required to imple-
ment the expedited procedures “if the Attorney General of the United
States certifies that [the] State has established a mechanism for providing
counsel in postconviction proceedings as provided in section 2265,” and if
“counsel was appointed pursuant to that mechanism, petitioner validly
waived counsel, petitioner retained counsel, or petitioner was found not to
be indigent.” 28 U.S.C. § 2261(b) (2006).
The Attorney General certification procedure is set forth in 28 U.S.C.
§ 2265(a)(1). That paragraph provides that, upon request “by an appropri-
ate State official,” the Attorney General “shall determine” the following:
(A) whether the State has established a mechanism for the ap-
pointment, compensation, and payment of reasonable litigation ex-
penses of competent counsel in State postconviction proceedings
brought by indigent prisoners who have been sentenced to death;
(B) the date on which the mechanism described in subparagraph
(A) was established; and
(C) whether the State provides standards of competency for the
appointment of counsel in proceedings described in subparagraph
(A).
These substantive requirements for Attorney General certification are, for
all purposes relevant here, identical to the requirements for entitlement to
expedited habeas procedures codified in the pre-2006 version of the
statute. See 28 U.S.C. § 2261(b) (2000). The amended version of 28
U.S.C. § 2265(a)(3) (2006), unlike the pre-2006 law, further specifies that
“[t]here are no requirements for certification or for application of [chapter
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33 Op. O.L.C. 402 (2009)
154] other than those expressly stated in [chapter 154].” And 28 U.S.C.
§ 2265(b) authorizes the Attorney General to prescribe regulations to
implement the certification process.
Underscoring the changed role of the federal habeas courts in the new
chapter 154 process, 28 U.S.C. § 2265(c) provides that the Attorney
General’s certification shall be reviewed by the United States Court of
Appeals for the District of Columbia Circuit. See 152 Cong. Rec. 2441
(Mar. 2, 2006) (statement of Sen. Kyl) (observing that review of certi-
fication is vested in the U.S. Court of Appeals for the District of Co-
lumbia Circuit, “which does not hear habeas petitions”).
II.
A.
The preamble to the 2008 final rule makes clear that the rule was in-
tended to constrain the Attorney General’s certification authority quite
significantly and that such a constraint was thought to be statutorily
required. The preamble expressly rejected the suggestion in some of the
comments received during the comment period that the Attorney General
had the authority to give independent substantive content to the statutory
requirements for certification to the extent those requirements were am-
biguous. The preamble explained that such comments “reflected misun-
derstandings of the nature of the functions that chapter 154 requires the
Attorney General to perform, and particularly, of the limited legal discre-
tion that the Attorney General possesses under the statutory provisions.”
73 Fed. Reg. at 75,327. Especially significant for present purposes, the
preamble stated with respect to the term “competent counsel”:
The commenters are correct that the text of chapter 154 needs to be
supplemented in defining competency standards for postconviction
capital counsel, but mistaken as to who must effect that supplemen-
tation. Responsibility to set competency standards for postconviction
capital counsel is assigned to the states that seek certification.
Id. at 75,331 (emphasis added). 2
2 One of the examples that the rule offered would seem to be in some tension with this
basic approach. The rule indicated that, in setting competency standards, a state could not
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State Procedures for Appointment of Competent Counsel
The preamble defended this conclusion primarily by referring to the
relationship between section 2265(a)(1)(A) and section 2265(a)(1)(C).
The former provision requires the Attorney General to determine whether
a state has “established a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent counsel in
State postconviction proceedings brought by indigent prisoners who have
been sentenced to death.” The latter provision requires the Attorney
General to determine “whether the State provides standards of competen-
cy for the appointment of counsel in proceedings described in subpara-
graph (A).” The preamble to the 2008 final rule reasoned that “[i]n con-
text, the phrase ‘competent counsel’ in section 2265(a)(1)(A) must be
understood as a reference to the standards of counsel competency that the
states are required to adopt by section 2265(a)(1)(C).” 73 Fed. Reg. at
75,331 (emphasis added). The preamble further explained that “[i]f
the reference to ‘competent counsel’ in section 2265(a)(1)(A) were a
directive to the Attorney General to set independently the counsel compe-
tency standards that states must meet for chapter 154 certification, then
the section 2265(a)(1)(C) requirement that the states provide such stand-
ards would be superfluous, and section 2265 would be internally incon-
sistent as to the assignment of responsibility for setting counsel compe-
tency standards.” Id.
In our view, however, these provisions do not compel the preamble’s
conclusion. There is no express direction in the text of section 2265 that
the Attorney General perform his certification function under subsection
(a)(1)(A) solely with reference to the standards of competency that a state
provides pursuant to subsection (a)(1)(C). The text of subsection (a)(1)
instead may be read to require the Attorney General to make three distinct
and independent determinations—those enumerated in subparagraphs
(A)–(C)—each without reference to the other.
simply allow “any attorney licensed by the state bar to practice law” to represent indigent
capital defendants in post-conviction proceedings. 73 Fed. Reg. at 75,339 (codified at 28
C.F.R. § 26.22(d) (example 4)). The Rule did not explain why this “bar-licensed” stand-
ard would not suffice, nor why it might be different in kind from other minimal standards
that a state could establish and still qualify for certification.
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33 Op. O.L.C. 402 (2009)
1.
In reaching this conclusion, we begin with the fact that nothing in the
text of subsection (a)(1)(A), standing alone, compels the conclusion that
the Attorney General must make his determination with reference to a
state’s standards of counsel competency. Indeed, subsection (a)(1)(A)
neither mentions such state-promulgated standards nor references sub-
section (a)(1)(C). The absence of such an explicit direction or reference is
significant. In general, it is fair to presume that Congress does not intend
for state officials to be solely responsible for construing and giving con-
tent to a federal statutory term—such as “competent” in subsection
(a)(1)(A)—that is ambiguous and not otherwise defined. As the Supreme
Court has made clear, there is a “general assumption” that “in the absence
of a plain indication to the contrary . . . Congress when it enacts a statute
is not making the application of the federal act dependent on state law.”
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989)
(internal quotation marks omitted).
That general assumption is especially warranted here because the statu-
tory framework at issue appears to have specifically charged a federal
official with interpretive authority. Congress assigned the Attorney Gen-
eral—not the states themselves—the function of certifying state mecha-
nisms, a task requiring that the Attorney General determine whether the
state’s proffered mechanism qualifies as one that is “for the appointment,
compensation, and payment of reasonable litigation expenses of compe-
tent counsel in State postconviction proceedings brought by indigent
prisoners who have been sentenced to death.” 28 U.S.C. § 2265(a)(1)(A)
(emphasis added). We presume that the Attorney General has discretion to
resolve statutory ambiguities contained in the statutory scheme he is
charged with administering. The term “competent” is plainly a generality
open to varying constructions. It is thus fair to conclude from the text of
subsection (a)(1)(A) standing alone that, by assigning to the Attorney
General the obligation to determine whether a state has established a
qualifying mechanism for appointing competent counsel, Congress in-
tended the Attorney General to resolve the ambiguity and to provide a
reasonable interpretation of the word “competent.” See Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)
(“ambiguities in statutes within an agency’s jurisdiction to administer are
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State Procedures for Appointment of Competent Counsel
delegations of authority to the agency to fill the statutory gap in reasona-
ble fashion”). 3
Although subsection (a)(1)(A) does not refer to the state standards for
competency described in subsection (a)(1)(C), it is true that subsection
(a)(1)(C) does expressly refer to subsection (a)(1)(A). In our view, how-
ever, that cross-reference does not suffice to compel the approach taken in
the 2008 final rule. In fact, if anything, the cross-reference points in the
opposite direction. The reference to subsection (a)(1)(A) in subsection
(a)(1)(C) is not an express directive to the Attorney General to conform
his judgments under subsection (a)(1)(A) to the competency standards
that subsection (a)(1)(C) requires him to determine that a state has estab-
lished. Rather, the reference to subsection (a)(1)(A) is more naturally read
as a shorthand means of identifying the kind of “proceedings” for which
states must provide standards of competency for the appointment of
counsel. Indeed, the fact that Congress chose to refer back to subsection
(a)(1)(A) in subsection (a)(1)(C) but, in doing so, did not expressly direct
the Attorney General to conform his determination under subsection
(a)(1)(A) to the standards that a state must provide under subsection
(a)(1)(C), is itself significant. It shows that although Congress included
statutory language cross-referencing provisions of section 2265(a)(1) in
another context, it chose not to expressly constrain the Attorney General’s
subsection (a)(1)(A) determination by reference to subsection (a)(1)(C).
Similarly, the amended law unambiguously requires the federal habeas
courts to give effect to the Attorney General’s certification determina-
tions. The courts’ limited role in this regard is demonstrated by section
2261(b)(1), which expressly requires courts to accept the Attorney Gen-
eral’s certification under section 2265(a)(1)(A) in determining whether
the expedited procedures apply. By contrast, the 2006 amendments do not
contain express language similarly requiring the Attorney General to
accept the state’s appointment mechanism or competency standards in
making his certification determination. Rather, section 2265(a)(1)(A)
provides only that “[t]he Attorney General shall determine . . . whether
the state has established” the required mechanism. It makes no refer-
3 The fact that the Attorney General’s certification decisions are subject to de novo
review by the United States Court of Appeals for the District of Columbia Circuit is not
inconsistent with Congress’s decision to confer interpretive authority on the Attorney
General. See United States v. Haggar Apparel Co., 526 U.S. 380, 391 (1999).
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33 Op. O.L.C. 402 (2009)
ence—either in the provision itself or by cross-reference—to state stand-
ards that would cabin this authority.
Although the preamble to the 2008 final rule did not contend that Con-
gress expressly conferred upon the states the preclusive authority to
define competency in a manner binding on the Attorney General’s sub-
section (a)(1)(A) certification determination, the preamble did assert that
the structure of section 2265 impliedly compels the conclusion that the
states possess such preclusive authority. The preamble observes in this
regard that an “internal[] inconsisten[cy]” would result from a contrary
view because states would then be authorized to issue standards for com-
petency that the Attorney General could reject. 73 Fed. Reg. at 75,331.
We do not see, however, how such a structure would necessarily intro-
duce any such inconsistency. States seeking certification would have
discretion to craft their own competency standards pursuant to subsection
(a)(1)(C), and the Attorney General would then review those standards as
part of his evaluation of whether the state mechanism ensures the ap-
pointment of counsel who meet minimum federal competency standards
pursuant to subsection (a)(1)(A). In this respect, the relationship between
the counsel competency standards applied as a matter of federal law by
the Attorney General and the standards provided by the states would
resemble the “cooperative federalism” model that is familiar from a
number of federal statutory regimes. See Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 (1982) (describing the
Education of the Handicapped Act, Pub. L. No. 91-230, 84 Stat. 175
(1970), as amended, as “leav[ing] to the States the primary responsibility
for developing and executing educational programs for handicapped
children,” but “impos[ing] significant requirements to be followed in the
discharge of that responsibility”); see also Wis. Dep’t of Health & Family
Servs. v. Blumer, 534 U.S. 473, 495 (2002) (observing that “[t]he Medi-
caid statute . . . is designed to advance cooperative federalism,” and that
“[w]hen interpreting other statutes so structured, we have not been reluc-
tant to leave a range of permissible choices to the States, at least where
the superintending federal agency has concluded that such latitude is
consistent with the statute’s aims”).
Indeed, although the preamble to the 2008 final rule suggests that an
approach contrary to that final rule would be anomalous, the approach
adopted in that final rule would introduce anomalies of its own. First, the
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State Procedures for Appointment of Competent Counsel
2008 final rule provides no explanation for why Congress would lodge
the certification function in the Attorney General—thus drawing on his
time and expertise—if it intended his responsibilities in this capacity to be
ministerial in nature. Second, the preamble to the 2008 final rule does not
explain why, absent express indications to the contrary, one should as-
sume Congress intended to establish a statutory framework that confers an
“array of procedural benefits” on states, contingent upon their meeting a
required set of qualifications, 152 Cong. Rec. 2446 (Mar. 2, 2006)
(statement of sponsor Sen. Kyl), but to leave wholly within the discretion
of the beneficiary states themselves the determination of a critical sub-
stantive criterion upon which eligibility under this framework depends.
Thus, concerns about statutory anomalies do not provide a necessary
reason to construe section 2265 as compelling the approach adopted in the
2008 final rule.
Finally, the preamble to the 2008 final rule relied on the fact that the
2006 amendments to AEDPA added a provision (section 2265(a)(3))
providing that “[t]here are no requirements for certification or for applica-
tion of [chapter 154] other than those expressly stated in [chapter 154].”
73 Fed. Reg. at 75,331. The text of section 2265(a)(3) does not, however,
compel the limited view of the Attorney General’s interpretive authority
that the 2008 final rule adopted. In reasonably construing an ambiguous
term in a statute that he is charged with administering, the Attorney Gen-
eral would not be adding to the requirements for certification, or other-
wise applying chapter 154 in ways not expressly stated. He would merely
be implementing an express statutory provision—the certification re-
quirement that a state establish a mechanism for the appointment, com-
pensation, and payment of reasonable litigation expenses of competent
counsel, 28 U.S.C. § 2265(a)(1)(A)—just as agency officials regularly do
in other contexts under the now familiar Chevron framework. See Chev-
ron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844
(1984) (“If Congress has explicitly left a gap for the agency to fill, there is
an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation.”).
2.
The legislative history of chapter 154 accords with our conclusion
that section 2265(a)(1)(A) may be read to afford the Attorney General
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33 Op. O.L.C. 402 (2009)
the authority, in the course of exercising his certification function, to
construe the term “competent” independent of the standards the states
themselves establish. To be sure, the legislative history makes clear that
the sponsors of the 2006 amendments were concerned with the manner in
which federal habeas courts had been approaching their role in the chapter
154 qualification process. See, e.g., 152 Cong. Rec. 2445–46 (Mar. 2,
2006) (statement of Sen. Kyl) (“Chapter 154 has received an extremely
cramped interpretation, denying the benefits of qualification to States that
do provide qualified counsel and eliminating the incentive for other States
to provide counsel.”). But the sponsors’ concerns do not suggest that, in
establishing a new role for the Attorney General in certifying state mech-
anisms, Congress meant to dispense with independent federal review of
the adequacy of those mechanisms. To see why, it is helpful to examine
the origins of the 2006 amendments.
Although the 2006 amendments made federal habeas court judgments
about the availability of expedited habeas procedures dependent upon the
Attorney General’s prior certification, it is significant that these provi-
sions did not alter the terms of the substantive requirements that states had
to meet in order to qualify for those procedures. Prior to the 2006 amend-
ments, states already had to “establish a mechanism for the appointment”
of counsel who were competent, and to establish competency standards
for such counsel, in order to qualify for the expedited procedures. Yet,
when Congress initially imposed these substantive requirements in 1996,
and for the decade thereafter, the relevant language was not understood to
reflect a congressional intent to insulate states from independent federal
review of whether their mechanisms for appointing counsel, as well as the
counsel competency standards they provided, were adequate to qualify for
expedited habeas procedures.
Congress’s original 1996 enactment came in response to a proposal of
the 1989 Report of the Ad Hoc Committee of the Judicial Conference on
Federal Habeas Corpus in Capital Cases, known as the “Powell Commit-
tee Report” (because the Committee was chaired by former Supreme
Court Justice Lewis Powell). H.R. Rep. No. 104-23, at 16 (1995). Follow-
ing the Committee’s recommendations, AEDPA created a system to
induce states to provide indigent capital defendants with post-conviction
representation, offering what was described in the legislative history as a
“quid pro quo,” or an “opt-in” system, now codified as chapter 154. Id. at
10, 16. As one of the chief sponsors of the 2006 amendments to chapter
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State Procedures for Appointment of Competent Counsel
154 acknowledged, with a few changes not relevant here, “the Powell
Committee Report’s recommendations are what is now chapter 154,” and
that Report “is thus a very useful guide to understanding chapter 154.”
152 Cong. Rec. 2447 (Mar. 2, 2006) (statement of Sen. Kyl); see also
Ashmus v. Woodford, 202 F.3d 1160, 1163 (9th Cir. 2000) (chapter 154
“essentially codifie[d]” the Powell Committee proposal); H.R. Rep. No.
104-23, at 16 (H.R. 729, which became section 107(a) of AEDPA, “incor-
porates” the Powell Committee Report’s recommendations).
Like the current section 2265(a)(1)(A), the Powell Committee Report’s
proposed 28 U.S.C. § 2256(b) would have provided a state with advanta-
geous procedures in federal habeas proceedings brought by capital de-
fendants if the state established “a mechanism for the appointment, com-
pensation and payment of reasonable litigation expenses of competent
counsel in State post-conviction proceedings brought by indigent prison-
ers whose capital convictions and sentences have been upheld on direct
appeal to the court of last resort in the State or have otherwise become
final for State law purposes.” 135 Cong. Rec. 24,696 (Oct. 16, 1989).
And, like current section 2265(a)(1)(C), the Powell Committee Report’s
proposed section 2256(b) also would have required the state to “provide
standards of competency for the appointment of such counsel.” 135 Cong.
Rec. 24,696. The express purpose of the structure envisioned by the
Powell Committee Report was to ensure that collateral review of capital
convictions would “be fair, thorough, and the product of capable and
committed advocacy.” Id.; see also id. at 24,695 (“[F]or States that are
concerned with delay in capital litigation, it is hoped that the procedural
mechanisms we recommend will furnish an incentive to provide the
counsel that are needed for fairness.”). “Central to the efficacy of this
scheme,” the Committee wrote, was “the development of standards gov-
erning the competency of counsel chosen to serve in this specialized and
demanding area of litigation.” Id. at 24,696; see also id. (“Only one who
has the clear ability and willingness to handle capital cases should be
appointed.”). The Committee explained that it was “more consistent with
the federal-state balance to give the States wide latitude to establish a
mechanism that complies with [the scheme].” Id. But, critically for pre-
sent purposes, the Committee stressed that “[t]he final judgment as to the
adequacy of any system for the appointment of counsel under subsection
(b) . . . rests ultimately with the federal judiciary.” Id. (emphasis added).
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33 Op. O.L.C. 402 (2009)
By enacting section 107(a) of AEDPA in 1996, Congress codified (in
what was then 28 U.S.C. § 2261(b)) language that is essentially the same
as appeared in the Powell Committee Report and that now appears in
section 2265(a)(1), see supra p. 405. Congress did not adopt the Judicial
Conference’s suggested amendment that would have established federal
statutory standards for counsel competence, 4 but the framework it
enacted was consistent with the suggestion of the Powell Committee that
there be independent federal review to determine “[t]he final judgment as
to the adequacy of any system for the appointment of counsel.” 135 Cong.
Rec. 24,696 (emphasis added). And, indeed, during the decade the origi-
nal AEDPA language was in effect, federal habeas courts construed then-
section 2261(b) to permit their independent review of the “adequacy” of
the states’ competency standards. 5
4 See Report of the Proceedings of the Judicial Conference of the United States 8 (Mar.
13, 1990); cf. 18 U.S.C. § 3599 (2006 & Supp. II 2008) (providing for the appointment of
counsel for indigent capital defendants in post-conviction proceedings in federal court and
setting qualifications that such counsel must meet).
5 For example, numerous district courts concluded that states defending capital convic-
tions were not entitled to expedited habeas procedures because the state competency
standards did not provide for the appointment of counsel with adequate experience and
skills in various facets of that specialized area of practice. See Colvin-El v. Nuth, No. Civ.
A. AW 97-2520, 1998 WL 386403, at *6 (D. Md. July 6, 1998) (Maryland’s competency
standards not “adequate” because they did not require counsel to have experience or
competence in raising collateral issues: “Given the extraordinarily complex body of law
and procedure unique to post-conviction review, an attorney must, at a minimum, have
some experience in that area before he or she may be deemed ‘competent.’”); Wright v.
Angelone, 944 F. Supp. 460, 467 (E.D. Va. 1996) (Virginia’s competency standards are
“deficient” and “grossly inadequate,” and “fail to satisfy the requirements of [chapter
154],” because a state must require counsel “to have experience and demonstrated compe-
tence in bringing habeas petitions”); Hill v. Butterworth, 941 F. Supp. 1129, 1142 (N.D.
Fla. 1996) (“[t]he plain language of 28 U.S.C. § 2261 contemplates counsel who are
competent through capital, post-conviction experience”; and Florida’s competency
standards were not “adequate” because they did not require “any degree of specialization
or skill in the arena of habeas proceedings” and made “no provision for any degree of
competence or experience for substitute counsel”), vacated on other grounds, 147 F.3d
1333 (11th Cir. 1998); see also Austin v. Bell, 927 F. Supp. 1058, 1061–62 (M.D. Tenn.
1996) (“Although Tennessee provides for the appointment of counsel for indigent defend-
ants, and has standards for determining whether appointed counsel has sufficiently
performed, Tennessee imposes insufficient standards to ensure that only qualified,
competent counsel will be appointed to represent habeas petitioners in capital cases.”)
(internal citations omitted).
414
State Procedures for Appointment of Competent Counsel
To be sure, the sponsors of the 2006 amendments to AEDPA intended
to bring about an important change in the framework that the Powell
Committee Report proposed and that Congress enacted into law in 1996.
But the legislative history of the 2006 amendments suggests that the
sponsors were concerned with the consequences of leaving the adequacy
review in the hands of federal habeas courts rather than with the prospect
of federal officials in general—let alone the Attorney General in particu-
lar—exercising independent authority to evaluate counsel competence.
The legislative history shows that the sponsors focused on at least three
specific problems they perceived in the AEDPA process, each of which
they addressed with new language in the 2006 amendments. None of these
responses indicates that the sponsors intended to require the Attorney
General to make his certification decision solely on the basis of the com-
petency standards established by the states. The legislative history of the
new amendments suggests, if anything, that the Attorney General would
instead be able to bring his expertise to bear in exercising the new certifi-
cation authority that Congress conferred upon him.
First, the sponsors expressed the view that the courts hearing prisoner
habeas cases could not fairly assess whether states satisfied the statutory
standards because such courts had a “conflict of interest” on the question.
151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extended remarks of
Rep. Flake). “Currently, . . . the court that decides whether a State is
eligible for chapter 154 is the same court that would be subject to its time
limits. Unsurprisingly, these courts have proven resistant to chapter 154.”
152 Cong. Rec. 2441 (Mar. 2, 2006) (statement of Sen. Kyl). 6 To address
Courts of appeals consistently engaged in a similar analysis in determining whether
states were entitled to the benefits set forth in the pre-2006 chapter 154. See, e.g., Baker v.
Corcoran, 220 F.3d 276, 286 n.9 (4th Cir. 2000) (noting that its ruling on a different
ground obviated the need to “consider whether Maryland’s competency standards, if
complied with, are adequate to ensure that prisoners subject to capital sentences receive
competent representation in post-conviction proceedings”); Ashmus v. Calderon, 123 F.3d
1199, 1208 (9th Cir. 1997) (concluding that “a state’s competency standards need not
require previous experience in habeas corpus litigation” because “[m]any lawyers who
could competently represent a condemned prisoner would not qualify under such a
standard”), rev’d on other grounds, 523 U.S. 740 (1998), vacated, 148 F.3d 1179 (9th Cir.
1998).
6 See also 152 Cong. Rec. 2445 (Mar. 2, 2006) (statement of Sen. Kyl) (“AEDPA left
the decision of whether a State qualified for the incentive to the same courts that were
415
33 Op. O.L.C. 402 (2009)
this issue, section 507 of the PATRIOT Improvement Act “places the
eligibility decision in the hands of a neutral party—the U.S. Attorney
General, with review of his decision in the D.C. Circuit, which does not
hear habeas petitions.” Id. If anything, then, this legislative history sug-
gests that the legislation was designed to substitute one independent
federal reviewer (the habeas judge) with another (the Attorney General)
thought more likely to be “neutral.” See also 151 Cong. Rec. E2640 (daily
ed. Dec. 22, 2005) (extended remarks of sponsor Rep. Flake) (explaining
that Congress was conferring upon the Attorney General the authority to
certify state mechanisms under section 2265(a)(1) in part because he “has
expertise in evaluating State criminal justice systems”). That the sponsors
of the legislation thought the Attorney General would be the more appro-
priate reviewing entity hardly indicates that Congress intended to make
the Attorney General’s judgment dependent upon the states’ own.
Second, section 107 of AEDPA had provided that the state appointment
mechanism could be established “by statute, rule of its court of last resort,
or by another agency authorized by State law.” 28 U.S.C. § 2261(b)
(2000). Congress’s excision of this language in the 2006 amendments
addressed the concern that arose from court decisions that construed such
language to significantly constrain the manner in which a state could
establish such a mechanism. For example, Senator Kyl, a sponsor of the
2006 amendments, pointed to Ashmus, 202 F.3d 1160, in which the U.S.
Court of Appeals for the Ninth Circuit held that California did not qualify
under chapter 154 because the state’s competency standards were con-
tained in its Standards of Judicial Administration rather than in its Rules
of Court; Senator Kyl called this conclusion “a hypertechnical reading of
the statute.” 152 Cong. Rec. 2446 (Mar. 2, 2006). The 2006 amendments
“abrogate[d]” this ruling by removing the “statute or rule of court” lan-
guage that had been “construed so severely by Ashmus,” so that “[t]here is
no longer any requirement, express or implied, that any particular organ
of government establish the mechanism for appointing and paying counsel
or providing standards of competency—States may act through their
impacted by the time limits. This has proved to be a mistake.”); 151 Cong. Rec. E2640
(daily ed. Dec. 22, 2005) (extended remarks of Rep. Flake) (“The trouble with chapter
154 is that the courts assigned to decide when it applies are the same courts that would be
bound by the chapter’s strict deadlines if a State is found to qualify. Simply put, the
regional courts of appeals have a conflict of interest.”).
416
State Procedures for Appointment of Competent Counsel
legislatures, their courts, through agencies such as judicial councils, or
even through local governments.” Id.Finally, the sponsors of the 2006 amendments expressed particular con-
cern with courts concluding that even when the federal statutory require-
ments had been satisfied, additional procedures could be imposed as a
matter of judicial discretion. In particular, the sponsors expressed concern
about the Ninth Circuit’s decision in Spears v. Stewart, 283 F.3d 992 (9th
Cir. 2001). In that case, the court of appeals held that even though Arizo-
na’s counsel appointment mechanism (including Arizona’s competency
standards) on its face satisfied the requirements of chapter 154, the state
was nonetheless not entitled to benefit from the expedited procedures in
the particular case because its appointment of the petitioner’s counsel did
not comply with the state’s own requirement that counsel be appointed in
an expeditious manner. Id. at 1018–19. See 151 Cong. Rec. E2640 (daily
ed. Dec. 22, 2005) (extended remarks of Rep. Flake) (noting that the
Ninth Circuit “found that Arizona’s counsel system met chapter 154
standards, but . . . nevertheless came up with an excuse for refusing to
apply chapter 154 to that case”); 152 Cong. Rec. 2446 (Mar. 2, 2006)
(statement of Sen. Kyl) (similar). According to the sponsors of the legisla-
tion, 28 U.S.C. § 2265(a)(3), which “forbids creation of additional re-
quirements not expressly stated in the chapter, as was done in the Spears
case,” 152 Cong. Rec. 2446, addressed this concern. Congress’s intent to
limit the requirements for certification to those “expressly stated,” there-
fore, does not indicate a corollary intent to strip the Attorney General of
the authority to apply those requirements that are “expressly stated,”
including the requirement in section 2265(a)(1)(A) that states establish a
mechanism for the appointment of “competent counsel.”
3.
For all of these reasons, we believe it would be reasonable to construe
section 2265(a)(1) to permit the Attorney General to certify only those
state mechanisms that provide for the appointment of counsel who meet a
minimum federal threshold of competency. If you so construe the statute,
then you may conduct the competency evaluation entirely on a case-by-
case basis as particular state mechanisms are presented for your certifica-
tion. Alternatively, pursuant to section 2265(b), you may promulgate
regulations that set forth the federal minimum competency standards that
417
33 Op. O.L.C. 402 (2009)
you will apply in making certification determinations, although you are
not required to take this action. Under either approach, however, we
believe that, consistent with the “traditional tools of statutory construc-
tion,” INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987), you may look
to a variety of sources in giving content to the federal standards that you
promulgate and apply. 7 We believe, however, that the text of subsection
(a)(1)(C), when read in light of the legislative history of chapter 154,
counsels against imposing too stringent a federal standard. A federal
standard that is set too high would not afford the states discretion, as
contemplated by Congress, to develop their own standards, within reason-
able bounds, of counsel competency and mechanisms for ensuring that
competent counsel are appointed. In particular, an unduly onerous
standard might render trivial the section 2265(a)(1)(C) requirement that
the states develop and provide their own standards of competency. Al-
though we reject the view that subsection (a)(1)(C) must be read to bind
the Attorney General to a state’s chosen competency standards, that
subsection may fairly be construed to reflect Congress’s intent that the
Attorney General not unduly constrain state discretion by imposing an
7 A nonexhaustive list of sources you might consult in interpreting the term “competent
counsel” would include judicial precedent, see, e.g., McFarland v. Scott, 512 U.S. 849,
855–56 (1994) (“capital defendants [are unlikely to be] able to file successful petitions for
collateral relief without the assistance of persons learned in the law”) (internal quotation
marks omitted); federal statutes, see, e.g., 18 U.S.C. §§ 3599(c)–(d) (setting qualifications
that counsel must have in order to represent indigent capital defendants in post-conviction
proceedings in federal court); the Model Rules of Professional Conduct, see, e.g., Ameri-
can Bar Association, Model Rule of Professional Conduct 1.1 (2007) (“Competent
representation requires the legal knowledge, skill, thoroughness and preparation reasona-
bly necessary for the representation.”); and American Bar Association guidelines, see,
e.g., American Bar Association, Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev.
913 (2003); see also Wiggins v. Smith, 539 U.S. 510, 524 (2003) (observing that the
Supreme Court “long ha[s] referred” to American Bar Association “standards for capital
defense work” “as ‘guides to determining what is reasonable’”) (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)); cf. Bobby v. Van Hook, 558 U.S. 4, 8 n.1 (2009)
(per curiam) (reserving the question of whether it would be legitimate to use the 2003
ABA guidelines to evaluate whether an attorney’s performance meets the reasonableness
standard required by the Sixth Amendment; explaining that for such use to be proper, “the
Guidelines must reflect ‘[p]revailing norms of practice’ . . . and must not be so detailed
that they would ‘interfere with the constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical decisions’”) (quoting
Strickland, 466 U.S. at 688, 689).
418
State Procedures for Appointment of Competent Counsel
overly stringent, one-size-fits-all federal standard of counsel competency.
And that same conclusion accords with the legislative history that is
relevant here.
B.
You have also asked us whether chapter 154 can reasonably be con-
strued to require the Attorney General to evaluate whether a proposed
state appointment mechanism—including, in particular, a state’s provision
of a certain level of attorney compensation—is adequate to ensure that
competent counsel will, in fact, be appointed for capital prisoners in state
post-conviction proceedings. The 2008 final rule appeared to construe the
statute to prohibit the Attorney General from making such an evaluation.
With particular respect to compensation, the preamble to the 2008 final
rule concluded that chapter 154 “requires only that the state have a mech-
anism for the ‘compensation’ of postconviction capital counsel, leaving
determination of the level of compensation to the states.” 73 Fed. Reg. at
75,331. In explaining this approach, the preamble relied in part on section
2265(a)(3), reasoning that “[p]rescribing minimum amounts of compensa-
tion to ensure ‘adequate’ or ‘reasonable’ compensation . . . would add to
the statutory requirements for certification, which 28 U.S.C. § 2265(a)(3)
does not allow.” 73 Fed. Reg. at 75,332; see also id. at 75,331 (subsec-
tion (a)(3) prohibits “the Attorney General . . . from supplanting the
states’ discretion in th[e] area [of attorney compensation]”).
In our view, this conclusion set forth in the preamble to the 2008 final
rule is not warranted. Section 2265(a)(1)(A), by its plain terms, requires
the Attorney General to determine whether the state has established a
mechanism for the compensation of counsel who are “competent.” We
believe this language may reasonably be construed to require the Attorney
General to determine whether a particular state mechanism would, in fact,
ensure appointment of competent counsel. Moreover, we believe that in
making such a determination it would be reasonable to conclude that a
state appointment mechanism must provide for compensation at a level
sufficient to encourage competent attorneys to accept appointments and to
enable those attorneys to provide their capital clients with competent legal
representation (unless the state mechanism by some other means ensures
representation by competent counsel notwithstanding low compensation
rates).
419
33 Op. O.L.C. 402 (2009)
To be sure, there is no language specifically authorizing the Attorney
General to evaluate the adequacy of attorney compensation provided by a
state’s appointment mechanism. Moreover, while section 2265(a)(1)(A)
mandates that the state provide reimbursement for “reasonable” litigation
expenses, it does not similarly qualify the requirement of attorney “com-
pensation.” But we do not think the absence of explicit statutory text
establishing that a state appointment mechanism must pay attorneys a
certain level of compensation demonstrates that Congress intended for the
Attorney General to be indifferent as to the level of compensation the
state provides. Cf. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222
(2009) (deeming it “eminently reasonable to conclude that [statutory
provision’s] silence” on whether an agency can employ cost-benefit
analysis “is meant to convey nothing more than a refusal to tie the agen-
cy’s hands”).
This conclusion draws support from the close nexus between the ade-
quacy of compensation, on the one hand, and the ability and willingness
of competent attorneys to take on indigent capital clients and provide
them with effective representation, on the other—a nexus recognized in
longstanding guidelines and standards for capital counsel. See American
Bar Association, Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases § 9.1 (rev. ed. 2003), reprinted
in 31 Hofstra L. Rev. 913, 981 (2003) (“Counsel in death penalty cases
should be fully compensated at a rate that is commensurate with the
provision of high quality legal representation and reflects the extraordi-
nary responsibilities inherent in death penalty representation.”); see also
id. § 9.1 cmt., reprinted in 31 Hofstra L. Rev. at 986 (“Low fees make it
economically unattractive for competent attorneys to seek assignments
and to expend the time and effort a case may require.”); cf. 18 U.S.C.
§ 3599(g)(1) (setting minimum compensation level in providing for ap-
pointment of counsel for a defendant otherwise “unable to obtain adequate
representation” in a federal criminal action involving a capital charge).
Judicial precedent from the decade before the 2006 amendments also
supports this reading. Several courts that had to determine whether states
qualified for the benefits of chapter 154 assumed that the pre-2006 ver-
sion of section 2261(b) required independent evaluation of the adequacy
of the compensation that a state seeking certification provided the attor-
420
State Procedures for Appointment of Competent Counsel
neys appointed pursuant to its mechanism. 8 As the U.S. District Court for
the District of Maryland observed, “although § 2261(b) does not expressly
require that a State establish a mechanism for the payment of reasonable
compensation, . . . [c]learly, the payment of at least minimally reasonable
compensation is necessary to obtain competent counsel, an express re-
quirement of § 2261(b).” Booth v. Maryland, 940 F. Supp. 849, 854 n.6
(D. Md. 1996), vacated on other grounds, 112 F.3d 139 (4th Cir. 1997).
III.
Because we have found no evidence in the language or legislative his-
tory of chapter 154 to suggest that Congress clearly intended a different
understanding, we conclude that you may interpret the statute to permit
evaluation of whether a proposed state mechanism—including the state’s
compensation system—is sufficient to ensure appointment of competent
counsel in state post-conviction proceedings brought by indigent prisoners
who have been sentenced to death. 9 We also conclude that you may
promulgate regulations pursuant to section 2265(b) that set forth the
standards you will apply in making such a determination.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
8 See, e.g., Ashmus, 123 F.3d at 1208; Baker, 220 F.3d at 285–86; Colvin-El, 1998 WL
386403, at *4; Booth v. Maryland, 940 F. Supp. 849, 854 n.6 (D. Md. 1996), vacated on
other grounds, 112 F.3d 139 (4th Cir. 1997); cf. Spears, 283 F.3d at 1015 (chapter 154
“requires that the appointment mechanism reasonably compensate counsel”); Mata v.
Johnson, 99 F.3d 1261, 1266 (5th Cir. 1996) (holding that “we do not find [Texas’s]
limits” on attorney compensation and litigation expense reimbursement “facially inade-
quate”), vacated in part on other grounds, 105 F.3d 209 (5th Cir. 1997).
9 You have not asked us to address, and we do not address here, whether the Attorney
General could impose a time limit, or sunset, on his certification of a state mechanism, or
whether he would be authorized to revisit and reconsider a chapter 154 certification if a
certified state mechanism proved inadequate in practice to ensure appointment of compe-
tent counsel.
421