E9-2493. Certification Process for State Capital Counsel Systems

AGENCY:

Department of Justice.

ACTION:

Notice of request for public comment.

SUMMARY:

Pursuant to the USA PATRIOT Improvement and Reauthorization Act of 2005, the Department of Justice promulgated a final rule to implement certification procedures for states seeking to qualify for the expedited federal habeas corpus review procedures in capital cases under chapter 154 of title 28 of the United States Code. Certification Process for State Capital Counsel Systems, 73 FR 75327 (Dec. 11, 2008). The procedural benefits of chapter 154 are available to states that establish mechanisms for providing counsel to indigent capital defendants in state postconviction proceedings that satisfy certain statutory requirements. The Department hereby requests public comment on issues related to the final rule.

DATES:

Comments are due April 6, 2009.

ADDRESSES:

Please address all comments regarding this notice, by U.S. mail, to: Ben Gorban, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, DC 20531. To ensure proper handling, please reference OJP Docket No. 1464 on your correspondence. You may view an electronic version of this notice at http://www.regulations.gov, and you may also comment by using the http://www.regulations.gov comment form for this notice. When submitting comments electronically you must include OJP Docket No. 1464 in the subject box.

FOR FURTHER INFORMATION CONTACT:

Ben Gorban, Bureau of Justice Assistance, Office of Justice Programs at [phone] (not a toll-free number.)

SUPPLEMENTARY INFORMATION:

Chapter 154 provides procedural benefits in federal habeas corpus review of capital cases to states that go beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by providing counsel also to capital defendants in state postconviction proceedings. Chapter 154 has been in place since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132).

Section 507 of Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”), amended chapter 154 of title 28 of the United States Code. Prior to the Act, the determination that a state was eligible for the procedural benefits of chapter 154 had been left to the federal court of appeals for the circuit in which a state was located. The Act, inter alia, amended sections 2261(b) and 2265 of title 28 to assign responsibility for chapter 154 certifications to the Attorney General of the United States, subject to de novo review by the Court of Appeals for the District of Columbia Circuit.

Section 2265(b) directs the Attorney General to promulgate regulations to implement the certification procedure. The Department of Justice published a proposed rule in the Federal Register on June 6, 2007, for this purpose, to add a new subpart in 28 CFR part 26 entitled “Certification Process for State Capital Counsel Systems.” Certification Process for State Capital Counsel Systems, 72 FR 31217 (June 6, 2007). The comment period ended on August 6, 2007. The Department published a notice on August 9, 2007, reopening the comment period, and the reopened comment period ended on September 24, 2007. 72 FR 44816 (Aug. 9, 2007). The Department of Justice published the final rule on December 11, 2008, with a scheduled effective date of January 12, 2009. Certification Process for State Capital Counsel Systems, 73 FR 75327 (Dec. 11, 2008).

The final rule is the subject of a preliminary injunction issued by a district court in the Northern District of California. See Habeas Corpus Res. Ctr. v. U.S. Dep't of Justice, No. C 08-2649 CW (N.D. Cal., Jan. 20, 2009). The Department of Justice has decided to solicit further comment on all aspects of the final rule for 60 days following publication of this notice. The Department will consider comments received during this period and publish a summary and response as appropriate.

Dated: February 2, 2009.

Mark Filip,

Acting Attorney General.