The Antiterrorism and Effective Death Penalty Act ("AEDPA"): Understanding the failures of state opt-in mechanisms

Iowa Law Review

Volumn 92, Issue 5, 2007, Pages 1969-2000

  Parker, Betsy Dee Sanders ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 34948872488     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (221)

1. Brief for the State Government as Amici Curiae at 14-15, Gideon v. Wainwright, 372 U.S. 335 (1963), 1962 WL 75209 (quoting Herman I. Pollack, Equal Justice in Practice, 45 MINN. L.REV. 737, 741-42 (1961)).
2. See infra Part II.B (discussing the Sixth Amendment right to counsel).
3. See ROBERT H. LOEB, JR., CRIME AND CAPITAL PUNISHMENT 28 (1978) (recounting the history of the death-penalty debate in the United States since the Revolution). An early supporter of the death-penalty-reform movement was Benjamin Franklin. Id Franklin supported the ideas that "(1) scriptural support for the death penalty was spurious; (2) the threat of hanging did not deter but increased crime; [and] (3) when a government puts one of its citizens to death, it exceeds the power entrusted to it." Id. Evidently, the majority of his contemporaries did not agree. The Fifth Amendment of the U.S. Constitution provides that no man shall "be deprived of life, liberty, or property, without due process of law." U.S. CONST, amend. V. The implication is that a person may be deprived of his life, given that the government affords him due process. RAYMOND PATERNOSTER, CAPITAL PUNISHMENT IN AMERICA 3 (1991). Accordingly, Congress shordy thereafter passed an act providing that the death penalty (inflicted by hanging) may be imposed for certain federal crimes of treason, murder, robbery, and forgery of public securities. Act of April 30, 1790, ch. 9, 1 Stat. 112 (codified with differences in scattered sections of 18 U.S.C).
4. See, e.g., Campaign to End the Death Penalty, http://www. nodeathpenalty.org (last visited May 16, 2007) (providing resources in opposition to the death penalty);
5. Death Penalty Debate and Poll, http://www.youdebate.com/DEBATES/ death_penalty.HTM (last visited May 16, 2007) (providing a forum for death penalty debate);
6. Pro-Death Penalty.com, http://www.prodeathpenalty.com (last visited May 16, 2007) (providing resources in support of the death penalty).
7. See infra Part II.C (describing habeas corpus claims).
8. Death Penalty Representation, http://www.deathpenaltyinfo.org/article. php?did= 896&scid=68 (last visited June 22, 2007) ("Almost all defendants in capital cases cannot afford their own attorneys.").
9. Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 18 U.S.C).
10. See infra Part II.A-C (discussing the legal landscape that set the scene for enactment of the AEDPA).
11. See infra Part II.D (discussing the provisions of the AEDPA).
12. See infra Part III (discussing state failures to comply with the AEDPA's opt-in requirements).
13. See infra Part IV (presenting a model for compliance with the AEDPA's opt-in requirements).
14. See LOEB, supra note 3, at 13 (noting examples of the death penalty in ancient Egypt dating from as early as 1750 B.C.);
15. see also MICHAEL KRONENWETTER, CAPITAL PUNISHMENT: A REFERENCE HANDBOOK 11 (2d ed. 2001) (noting that Ancient Babylon used the death penalty more than 3700 years ago).
16. LOEB, supra note 3, at 14-18. A prisoner in England who was sentenced to be drawn and quartered was dragged from prison, "hanged, but not long enough to the," disemboweled, "his entrails were burned, his head cut off, and his body hacked into four quarters" and "set in some open place." Id at 18. Women convicted of the same crime were not drawn and quartered, but rather burned alive.
17. JOHN LAURENCE, A HISTORY OF CAPITAL PUNISHMENT, WITH SPECIAL REFERENCE TO CAPITAL PUNISHMENT IN GREAT BRITAIN 9 (1932). Blackstone explained that the disparity was because "the decency due to the sex forbids the exposing and public [] mangling [of] their bodies."
18. WILLIAM BLACKSTONE, BLACKSTONE'S COMMENTARIES ON THE LAWS OF ENGLAND 93 (Wayne Morrison ed., 2001 ) [hereinafter BLACKSTONE'S COMMENTARIES] .
19. LOEB, supra note 3, at 25.
20. KRONENWETTER, supra note 12, at. 16.
21. Id.
22. Id.
23. Id.
24. DEATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY 1 (2007), http://www.deathpenaltyinfo.org/FactSheet.pdf. Jurisdictions that do not allow the death penalty as of May 15, 2007, are: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, and the District of Columbia. Id. Of the states that do allow the death penalty, the following lists in descending order the number of executions by the state from 1976 through May 15, 2007: Texas (392), Virginia (98), Oklahoma (84), Missouri (66), Florida (64), North Carolina (43), Georgia (39), Alabama (36), South Carolina (36), Akansas (27), Louisiana (27), Ohio (25), Aizona (22), Indiana (18), Delaware (14), California (13), Illinois (12), Nevada (12), Mississippi (8), Utah (6), Maryland (5), Washington (4), Montana (3), Nebraska (3), Pennsylvania (3), Tennessee (3), Kentucky (2), Oregon (2), Colorado (1), Connecticut (1), Idaho (1), New Mexico (1), Wyoming (l)./d. at 3.
25. See id. at 4 ("[Thirty-seven] of 38 [death penalty] states plus the U.S. government use lethal injection as their primary method [of execution]."). Other methods that have been used since 1976 include electrocution, gas chamber, hanging, and firing squad. Id,
26. Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996, 1 PUB. PAPERS 630, 631 (Apr. 24, 1996) (stating that the Act was intended to reduce "endless death row appeals [that] have stood in the way of justice being served").
27. See Powell v. Aabama, 287 U.S. 45, 61-64 (1932) (describing the protection of the right that each colony included in its constitution).
28. See BLACKSTONE'S COMMENTARIES, supra note 13, at 355 ("[I]t is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated ....").
29. Id. (lamenting the inequity of affording defendants the right to an attorney in trials for "every petty trespass" but not affording such a right in capital cases). One theory behind this denial of counsel was that the neutral judge was capable of protecting the rights of the accused, rendering counsel unnecessary. JAMES J. TOMKOVICZ, THE RIGHT TO THE ASSISTANCE OF COUNSEL: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 5 (2002).
30. See TOMKOVICZ, supra note 24, at 9-10.
31. Powell, 287 U.S. at 64-65.
32. Id. (acknowledging, however, that "in one or two instances the right was limited to capital offenses or to the more serious crimes").
33. U.S. CONST, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.").
34. U.S. CONST, amend. XIV, §1. The Fourteenth Amendment provides: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
35. Id.; see also Douglas v. California, 372 U.S. 353, 357 (1963) ("Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." (emphasis omitted)).
36. Powell, 287 U.S. at 68 (noting that historically, defendants had been afforded "the right to the aid of counsel when desired and provided by the party asserting the right").
37. See id. at 52-60, 73 (expanding the constitutional right to counsel to include a requirement that counsel be appointed for an indigent prisoner in a capital case).
38. Id.
39. Id.
40. Gideon v. Wainwright, 372 U.S. 335, 341 (1963) (overruling precedent on the grounds that refusal to appoint counsel violated a "fundamental safeguard [] of liberty immune from federal abridgment [and] equally protected against state invasion by the Due Process Clause").
41. TOMKOVICZ, supra note 24, at 36.
42. Powell 287 U.S. at 71;
43. see also Gideon, 372 U.S. at 343-44.
44. TOMKOVICZ, supra note 24, at 112.
45. See Douglas v. California, 372 U.S. 353, 357-58 (1963) (noting that without this rule, the indigent defendant "has only the right to a meaningless ritual, while the rich man has a meaningful appeal"). The Douglas rule extends no further than first-tier review because the defendant's "claims have once been presented by a lawyer and passed upon by an appellate court." Id. at 356.
46. Murray v. Giarratano, 492 U.S. 1, 10 (1989) (holding that the rule that indigent prisoners enjoy no constitutional right to counsel when seeking post-conviction relief in state courts applies to capital and noncapital defendants alike).
47. STEVEN M. STATSINGER, FEDERAL HABEAS CORPUS: PRACTICE COMMENTARIES AND STATUTESI (2002).
48. Id.
49. RONALD P. SOKOL, A HANDBOOK OF FEDERAL HABEAS CORPUS 4-5 (1965).
50. Id.
51. ANDREA D. LYON, EMILY HUGHES & MARY PROSSER, FEDERAL HABEAS CORPUS: CASES AND MATERIALS 3 (2005).
52. NAT'L CTR. FOR STATE COURTS & STATE JUSTICE INST., HABEAS CORPUS IN STATE AND FEDERAL COURTS 1 (1994).
53. STATSINGER, supra note 40, at ix.
54. Id.at 1.
55. Id.
56. LYON ET AL., supra note 44, at 3.
57. U.S. CONST, art I, §9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it").
58. See STATSINGER, supra note 40, at 1-2 (remarking that habeas proceedings are governed by statute, "the Federal Rules of Civil Procedure, two sets of procedural rules promulgated solely for habeas corpus petitions, various courts' local rules, and a significant body of case law," and noting that the proceedings require "significant expertise in constitutional law and criminal law and procedure"), Prisoners in state custody may file for habeas relief under 28 U.S.C. § 2254 (2000). Petitioners in federal custody may file for habeas relief under its sister statute, 28 U.S.C. §2255.
59. See supra Part ILB (discussing the Sixth Amendment right to counsel).
60. STATSINGER, supra note 40, at 2.
61. Id.
62. Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 28 U.S.C).
63. Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996, 1 PUB. PAPERS 630, 630-32 (Apr. 24, 1996) [hereinafter Statement on Signing] (explaining, in general terms, the origins and provisions of the Act, as well as the reasons the President signed the Act). Pan Am Flight 103 was traveling from London to New York when it crashed in Lockerbie, Scotland, on December 21, 1988.
64. Edward Cody, Pan Am Jet Crashes in Scotland, Killing at Least 273, WASH. POST, Dec. 22, 1988, at Al. The crash killed all 258 people aboard and fifteen people on the ground. Id. The crash was caused by a plastic explosive placed onboard the plane. Malcolm W. Browne, Experts Say Bombing Showed Technical Skill and Resources, N.Y. TIMES, Dec. 29, 1988, at A10. On April 20, 1995, 158 people were killed at the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, when a car bomb exploded outside. CBS News, Bombing and Legal Timeline, http://www.cbsnews.com/htdocs/ oklahoma_city_bombing/ timeline.html (last visited May 16, 2007). The explosion was considered an "act of domestic terrorism." Id.
65. Statement on Signing, supra note 56, at 630-31.
66. See generally Antiterrorism and Effective Death Penalty Act (AEDPA), 110 Stat. 1214.
67. See supra Part II.C (discussing the development of habeas corpus).
68. 28 U.S.C. § 2244(d) (1) (2000). Prior to the AEDPA there was "no statute of limitations governing federal habeas" claims. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
69. 28 U.S.C. § 2263(a).
70. Id. § 2261.
71. Id § 2244(d)(1).
72. H.R. REP. NO. 104-23, at 8 (1995).
73. See Statement on Signing, supra note 56, at 630-31 (expressing the concern that "endless death row appeals have stood in the way of justice being served").
74. 28 U.S.C. § 2263(a).
75. See supra Part II.D.1 (discussing the limitation period for all federal habeas corpus claims).
76. H.R. REP. NO. 104-23, at 8.
77. Id. at 10 (noting that "the continuation of litigation means that the sentence cannot be carried out").
78. 28 U.S.C. § 2261.
79. Id. § 2261(a)-(c). The phrase "Section 2254" refers to 28 U.S.C. § 2254. Prisoners in state custody file habeas claims under this section.
80. Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996).
81. 28 U.S.C. § 2261(b).
82. Id. § 2261.
83. This date is based on the author's review of the relevant state statutory schemes and case law.
84. 28 U.S.C. § 2261; see also Hill v. Butterworth, 941 F. Supp. 1129, 1141 (N.D. Fla. 1996) (clarifying that states must satisfy all four requirements in order to opt in).
85. See, e.g., Tucker v. Catoe, 221 F.3d 600, 604-05 (4th Cir. 2000) ("[A] state must not only enact a 'mechanism' and standards for post-conviction review counsel, but those mechanisms and standards must in fact be complied with before the state may invoke the time limitations of 28 U.S.C. § 2263.");
86. Bennett, 92 F.3d at 1342 ("In other words, the Act establishes a quid-pro-quo relationship: A state seeking greater federal deference to its habeas decisions in capital cases must, by appointing competent counsel to represent indigent petitioners, further ensure that its own habeas proceedings are meaningful.");
87. Tucker v. Moore, 56 F. Supp. 2d 611, 614 (D.S.C. 1999). In Tucker v. Moore, the court wrote: If the Respondents did not follow their own procedures set forth in S.C. Code Ann. § 17-27-160(B) when appointing counsel for the Petitioner during the state [Public Defender Commission] proceedings, then the Respondents cannot invoke [Section 2263] against the Petitioner in this federal habeas action, even assuming S.C. Code Ann. § 17-27-160 does satisfy 28 U.S.C. § 2261(b) and (c). Id.
88. 28 U.S.C. § 2261(b).
89. Ahmus v. Woodford, 202 F.3d 1160 (9th Cir. 2000).
90. Id. at 1165.
91. See id. at 1167 ("The State of California has offered no evidence that, as of June 1989, it had established 'by rule of its court of last resort or by statute' a mechanism for the appointment, compensation and payment of reasonable expenses for collateral counsel."). A rule of court is a "regulation [] having the force of law and governing practice and procedure in the various courts." BLACK'S LAW DICTIONARY 391 (8th ed. 1999). Federal examples include the Federal Rules of Criminal Procedure and the U.S. Supreme Court Rules. Id,
92. Ashmus, 202 F.3d at 1166 (quoting CALIFORNIA SUPREME COURT, INTERNAL OPERATING PRACTICES AND PROCEDURES Introduction (1989)).
93. Id.
94. Id.
95. Id.
96. Id. at 1167.
97. Ashmus, 202 F.3d at 1167.
98. Id.
99. 28 U.S.C. § 2261(b) (2000).
100. Ashmus, 202 F.3d at 1160.
101. Id. at 1168. The competency standards are set forth in Section 20 of the Standards of Judicial Administration Recommended by the Judicial Council. Id. (citing CALIFORNIA STANDARDS OF JUDICIAL ADMINISTRATION § 20 (1985)).
102. See supra Part III.A (discussing the court's holding that portions of court rules and court operating procedures were not sufficient to "establish" the mechanism as required by § 2261).
103. Ashmus, 202 F.3d at 1168-69.
104. Id.
105. Id. at 1168-69.
106. Wright v. Angelone, 944 F. Supp. 460, 466 (E.D. Va. 1996).
107. Id The statutory authorization at issue read as follows:The Public Defender Commission, in conjunction with the Virginia State Bar, shall adopt standards for the appointment of counsel in capital cases, which take into consideration, to the extent practicable, the following criteria: (i) license or permission to practice law in Virginia; (ii) general background in criminal litigation; (iii) demonstrated experience in felony practice at trial and appeal; (iv) experience in death penalty litigation; (v) familiarity with the requisite court system; (vi) experience in death penalty litigation; and (vii) demonstrated proficiency and commitment to quality representation. Id. (quoting VA. CODE ANN. §19.2-163.8 A (Michie 1995)).
108. Id.
109. Id. at 467. The standards set by the Public Defender Commission required the "lead counsel" to "possess familiarity with habeas corpus practice" and to possess at least one of the following: (i) experience as lead counsel in the defense of at least one capital case; (ii) experience as co-counsel in the defense of at least two capital cases; (iii) experience as "lead counsel" (or as lead prosecutor) in at least five felony jury trials in Virginia courts involving crimes of violence which carry, upon conviction, a minimum sentence of at least five years imprisonment. Id. at 467 n.5 (quoting VA. ADMIN. CODE § 30-10-10(A)(1) (Michie 1992)).
110. Id. at 467 n.5.
111. Wright, 944 F. Supp. at 467 n.5. ("[A]n attorney who has never handled a state habeas petition would be qualified under the Commission's standards if he was familiar with habeas practice.").
112. Id.
113. See id. at 467 ("Moreover, there is no requirement that counsel have had any experience with capital cases.").
114. Id. at 467 n.5.
115. Austin v. Bell, 927 F. Supp. 1058 (M.D. Tenn. 1996).
116. Id. at 1062 (quoting TENN. CODE ANN. § 40-14-202 (1982)).
117. See Id. ("That an attorney has passed the Tennessee bar examination does not mean that the attorney is competent to handle a habeas petition in a capital case.").
118. Id.
119. Hill v. Butterworth, 941 F. Supp. 1129, 1141-44 (N.D. Fla. 1996).
120. Id. at 1142 (citing FLA. STAT. § 27.701 (1995)). The State Capital Collateral Representative is the regional head of the Capital Collateral Representative Office and supervisor of the full-time Asistant Capital Collateral Representative. Id.
121. Id, (quoting FLA. STAT. § 27.704(1)).
122. See Id. at 1143-44 ("[S]ince the State of Florida does not have a statute or rule with a mechanism for ensuring 'competent counsel in State post conviction proceedings' is appointed for indigent capital defendants, it cannot qualify as an 'opt-in' state under [§ 2263].").
123. Id. at 1143 (citing 21 U.S.C. § 848 (1994)).
124. Hill, 941 F. Supp. at 1143 (requiring that at least one attorney "'must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases.'" (quoting 21 U.S.C. § 848 (q) (6))).
125. Id.
126. Mata v. Johnson, 99 F.3d 1261 (5th Cir. 1996).
127. Id at 1266-67. The relevant portion of the statute provides that "[u]nless an applicant elects to proceed pro se or is represented by retained counsel, the court of criminal appeals shall, under rules and standards adopted by the court, appoint competent counsel at the earliest practicable time." Id at 1267 n.12 (quoting TEX. CODE CRIM. PROC. ANN. art. 11.071 § 2(d) (Vernon 1995)).
128. Id. at 1267.
129. Id.
130. Id.
131. Mata, 99 F.Sd at 1267.
132. Id.
133. Spears v. Stewart, 283 F.3d 992, 1002-04 (9th Cir. 2002).
134. Id at 1003 (citing ARIZ. R. CRIM. P. 6.8(d) (1998)).
135. The relevant portion of the rule provided that; "In exceptional circumstances and with the consent of the Supreme Court, an attorney may be appointed who does not meet the qualifications set forth in sections (a)(1) and (2), (b) and (c) of this rule, providing that the attorney's experience, stature, [sic] and record enable the Court to conclude that the attorney's ability significantly exceeds the standards set forth in this rule and that the attorney associates with himself or herself a lawyer who does meet the standards set forth in this rule." Id. (quoting ARIZ. R. CRIM. P. 6.8(d)).
136. Id. (quoting ARIZ. R. CRIM. P. 6.8(d)).
137. Id.
138. Id.
139. Spears, 283 F.3d at 1003.
140. Id. See supra Part III.B.2 (stating that in Wright v. Angelone, the court objected to the discretion the state legislature gave the Public Defender Commission to decide competency standards in accordance with statutory guidelines).
141. Spears, 283 F.3d at 1003.
142. 28 U.S.C. § 2261(b) (2000).
143. Wright v. Angelone, 944 F. Supp. 460, 464-65 (E.D. Va. 1996). The relevant statute provided that "[t]he state's share of expenses incident to the prosecution of a petition for a writ of habeas corpus by an indigent petitioner, including payment of counsel fees as fixed by the court. . . shall be paid upon receipt of an appropriate order from circuit court." Id. (quoting 1996 Va. Acts 2743).
144. Id. at 464-68; see also supra Part III.B (discussing the competent-counsel requirement);
145. infra Part III.D (discussing the actual-appointment requirement).
146. Wright, 944 F. Supp. at 464.
147. See id, at 465 (remarking that the Appropriations Act failed to provide the "clear guidance" required by § 2261).
148. See id. (noting that appointed counsel clearly were confused as to what, if any, procedure they should follow in order to receive payment under the statutory scheme).
149. Id.
150. Booth v. Maryland, 940 F. Supp. 849, 854 (D. Md. 1996). Although this case was overturned on appeal for other reasons, this court later adopted the portion of the opinion relating to the opt-in provision. Oken v. Nuth, 30 F. Supp. 2d 877, 880 (D. Md. 1998) ("[T]he court adopts by reference Part II of Chief Judge Motz's Opinion, as set out at 940 F. Supp. at 852855." (emphasis added)).
151. Booth, 940 F. Supp. at 854.
152. Id. The actual rates were as follows: Hourly rates Out of court-$30 per hour In-court work-$35 per hour Caps on fees First proceeding through trial court-$12,500 (per attorney) on appeal through Maryland Court of Appeals and certiorari petition to Supreme Court-$6,250 (to be split between attorneys) on appeal through Supreme Court if certiorari granted-$6,250 (to be split between attorneys) Second post-conviction proceeding (through trial and appeal)-$12,500 (to be split between attorneys) Id.
153. Id. (noting that the average rate necessary to cover overhead expenses is approximately fifty-three dollars per hour, regardless of whether the expenses are incurred by a private firm or the Public Defender's Office).
154. Id.
155. The average hourly rate of a Maryland lawyer appointed to a post-conviction habeas claim, based on expenses and compensation, was $11.73. Id. The median hourly rate of a Maryland cafeteria cook in May, 2005, was $11.87. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, MAY 2005 STATE OCCUPATIONAL EMPLOYMENT AND WAGE ESTIMATES: MARYLAND, available at http://www.bls.gov/ oes/current/oes_md.htm#b00-0000.
156. Booth, 940 F. Supp. at 854.
157. Spears v. Stewart, 283 F.3d 992,1002-04 (9th Cir. 2002).
158. See supra Part III.B.6 (discussing the competent-counsel requirement under Spears).
159. Spears, 283 F.3d at 1002 (citing ARIZ. REV. STAT. ANN. §134041 (G) (1998)).
160. Id. (citing ARIZ. REV. STAT. ANN. §13-4041 (H)).
161. See id. (holding that the state "fail[ed] to establish a mechanism for the reasonable compensation of Arizona's post-conviction capital attorneys").
162. Id A justification for this conclusion, the court cited research showing that legal counsel usually spend far more than 200 hours working on post-conviction proceedings in state capital cases. Id.
163. Id. Other circuits have agreed with this position. See Baker v. Corcoran, 220 F.3d 276, 285-86 (4th Cir. 2000) (holding that a system that paid an attorney thirty to thirty-five dollars per hour was not sufficient to satisfy this element because it "results in substantial losses to the appointed attorney");
164. Mills v. Anderson, 961 F. Supp. 198, 202 (S.D. Ohio 1997) (holding that Ohio failed to provide reasonable compensation in part because "counties are subject to maximum amounts but not minimums in setting fee schedules for appointed counsel").
165. Spears, 283 F.Sd at 1002.
166. Id.
167. Id.
168. 28 U.S.C. § 2261(c) (2000).
169. Brown v. Puckett, No. 3:01CV197, 2003 U.S. Dist. LEXIS 26359, at *6-7 (N.D. Miss. Mar. 12, 2003). Supreme Court Justice Lewis Powell chaired the "Powell Committee," a committee formed "for the purposes of studying and recommending changes to the habeas corpus process as it applied to State capital cases." H.R. REP. NO. 104-23, at 8 (1995). The Powell Committee expressed the importance of this point.
170. See generally 135 CONG. REC. S13471-04, S13481 (daily ed. Oct. 16, 1989) (setting forth the text of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases Committee Report). The Powell Committee's Report included the Report on Habeas Corpus in Capital Cases, which stated: [The state mechanism] must provide for the entry of an appropriate judicial order based on the state prisoner's response to the offer of counsel. Judicial control of this process is necessary to establish a clear point in time to determine the applicability of section 2257 and 2258. It is also necessary to assure that a full record exists showing which state prisoners have appointed counsel and which do not. Id. at S13484.
171. Wright v. Angelone, 944 F. Supp. 460, 464 (E.D. Va. 1996).
172. Id. (citing VA. CODEANN. § 19.2-163.7 (Michie 1995)).
173. Id.
174. See id ("Section 2261(b) contemplates a 'mechanism' by which the state is required to appoint counsel in all cases involving indigent capital defendants, not only in those cases where the petitioner has the acumen to request court-appointed counsel.").
175. Id.
176. Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir. 2003). Missouri Rule of Criminal Procedure 29.16 provides: "When a motion is filed as provided in rule 29.15 to set aside a sentence of death, the court shall find on the record whether the movant is indigent. If the movant is indigent, the court shall cause to be appointed two counsel to represent the movant." MO. R. CRIM. P. 29.16 (1997).
177. Hall, 341 F.3d at 711-12.
178. 28 U.S.C. § 2261(c) (2000).
179. Id. § 2261 (c)(1).
180. Hall, 341 F.3d at 712.
181. Id.
182. Id.
183. Hill v. Butterworth, 941 F. Supp. 1129 (N.D. Fla. 1996).
184. Id. at 1144.
185. Id. The number of indigent prisoners under capital sentence who were not provided counsel was at least forty. Id. at 1146.
186. Id.
187. Id.
188. Hill, 941 F. Supp. at 1147.
189. Scott v. Anderson, 958 F. Supp. 330 (N.D. Ohio 1997).
190. Id. at 332. The relevant portion of the statute provided that "'the county public defender shall provide legal representation to indigent adults and juveniles . . . in post-conviction proceedings as defined in this section.'" Id. (emphasis omitted) (quoting OHIO REV. CODE ANN. § 120.16(A)(1) (West 1984)).
191. Id. The relevant portion of the statute provided that "'the county public defender shall not be required to prosecute any appeal, post-conviction remedy, or other proceeding, unless he is first satisfied there is arguable merit to the proceeding.'" Id (quoting OHIO REV. CODE ANN. § 120.16(D)).
192. See id. ("Thus, given the discretion provided to public defenders by O.R.C. Sec. 120, an indigent defendant who requests state appointed counsel is not certain to receive such assistance at the post-conviction stage.").
193. Id.
194. Tucker v. Moore, 56 F. Supp. 2d 611, 613 (D.S.C 1999) (noting that the state statute "established a mechanism requiring the appointment of two counsel in death penalty cases, standards for qualification of counsel to be appointed, and compensation and litigation expenses for hearing and appellate counsel in the cases").
195. Id. at 614. It was uncontested that neither of the appointed counsel satisfied the competency requirement of having previously represented a capital prisoner in post-conviction proceedings. Id. at 625.
196. Id at 614.
197. Id.
198. See id. (emphasizing that "in this case, the two counsel appointed to represent the petitioner during the state post-conviction relief (PCR) proceedings did not satisfy the standards set forth in S.C. CODE ANN. § 17-27-169").
199. Grayson v. Epps, 338 F. Supp. 2d 699 (S.D. Miss. 2004).
200. Id. at 703.
201. Id. at 704.
202. Id. at 701. The appointment mechanism read as follows: "(d) . . . Counsel representing those under a sentence of death seeking post-conviction relief shall. (1) Be admitted to practice law in Mississippi, being a member in good standing of the Bar for at least five years immediately preceding the appointment, or admitted pro hac vice pursuant to order entered under M.RAP. 46 and being a member in good standing of that attorney's home jurisdiction for a like period immediately preceding the appointment, (2) Be admitted to practice in the federal courts of Mississippi and before the Fifth Circuit, or, in the case of attorneys appearing pro hac vice, admitted to the federal district courts and the circuit court of appeals having jurisdiction in their home areas, (3) Have practiced in the area of state criminal appeals or post-conviction proceedings for three years immediately preceding appointment, (4) Have not previously represented the capital petitioner in the case either in the trial court or in the direct appeal, unless the petitioner and counsel expressly request continued representation and waive all potential issues that are foreclosed by continued representation, and (5) Have within five years immediately preceding the appointment been counsel in an appeal or post-conviction proceeding in a case in which a death sentence was imposed, and have prior experience as counsel in the appeal of at least three felony convictions and at least one post-conviction proceeding; or, in the alternative, have within such period been counsel in the appeal of at least six felony convictions, at least two of which were appeals from murder convictions and counsel in at least two post-conviction proceedings. Provided, however, under exceptional circumstances, and with the consent of the Supreme Court, an attorney may be appointed who does not meet the stated qualifications upon a showing that the attorney's experience, stature and record enable the Court to conclude that the attorney's ability significantly exceeds the standards set forth in the rule. (e) . . . Effective July 31, 2000, an attorney serving as post-conviction counsel in a case wherein the petitioner is under a sentence of death shall have within one year prior to his appointment or employment successfully completed twelve hours training or educational programs in the area of capital defense through a program accredited by the Mississippi Commission on Continuing Legal Education or by the American Bar Asociation." Id. at 702-03 (quoting MISS. R. APP. P. 22(d), (e) (2000)).
203. See id. at 701 (disagreeing with the state's argument that the passage of the statutory mechanism is enough for the state to utilize the benefits of § 2263).
204. Grayson, 338 F. Supp. 2d at 703.
205. While this sample statute is simplistic, it should serve as an example of one way to incorporate all of the elements of § 2261.
206. Cf. Wright v. Angelone, 944 F. Supp. 460, 466-67 (E.D. Va. 1996) (discussing the provisions provided by state statute). The experience requirements incorporate two of the statutory provisions set forth in Wright. They do not incorporate the third provision, which made experience with capital cases optional. Id. at 466 n.5.
207. Cf. Ahmus v. Woodford, 202 F.3d 1160, 1166 (9th Cir. 2000) (finding the mechanism insufficient because it was not established through statute).
208. Cf. id. at 1167 (requiring that the statute actually create the mechanism for appointment of counsel).
209. Cf. Wright, 944 F. Supp. at 466 (holding that requirements, rather than guidelines, must be established explicitly by statute).
210. Cf. Ashmus, 202 F.3d at 1168 (requiring that the statutory mechanism for appointment of counsel be mandatory and binding).
211. Cf. Wright, 944 F. Supp. at 467 (requiring that appointed counsel have experience with capital cases and requiring specificity as to counsel's experience with habeas corpus proceedings).
212. Cf. Hill v. Butterworth, 941 F. Supp. 1129, 1142-44 (N.D. Fla. 1996) (holding that membership in the state bar association was not sufficient to constitute competent counsel).
213. Cf. Spears v. Stewart, 283 F.Sd 992, 1002 (9th Cir. 2002) (holding that the mechanism must supply a minimum hourly rate of pay).
214. Cf. id (holding that the maximum hourly rate of $100 was "facially insufficient"); Booth v. Maryland, 940 F. Supp. 849, 854 (D. Md. 1996) (holding that the maximum cap of $12,500 on fees was insufficient).
215. Cf. Wright, 944 F. Supp. at 465 (holding that the mechanism must create a specific procedure for attorney compensation).
216. Cf. id at 464 (holding that the mechanism was insufficient because it required the prisoner to request counsel).
217. Cf. Scott v. Anderson, 958 F. Supp. 330, 330 (N.D. Ohio 1997) (finding the mechanism insufficient where the appointed attorney was allowed to withdraw from representation if, in his determination, the case did not have sufficient merit).
218. Cf. Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir. 2003) (holding that all capital prisoners must be offered counsel, and all indigent prisoners must be appointed counsel).
219. See supra note 77 and Part III.E (discussing the courts' requirement that states actually comply with the opt-in mechanisms they create).
220. See supra note 75 (stating that this date is based on the author's
221. See Hill v. Butterworth, 941 F. Supp. 1129, 1144 (N.D. Fla. 1996) (noting the ongoing problem of inadequate funding for the Florida appointment mechanism to work). The Office of Capital Collateral Representative is the Florida agency charged with representing indigent prisoners. Id. Since the Office's inception in 1985, funding has been a chronic problem. Id The result has been an inability to appoint counsel for indigent prisoners and a failure to provide effective assistance of counsel to those prisoners it does represent. Id.