The Attorney General's Authority in Certifying Whether a State Has Satisfied the Requirements for Appointment of Competent Counsel for Purposes of Capital Conviction Review Proceedings

THE ATTORNEY GENERAL’S AUTHORITY IN CERTIFYING WHETHER

A STATE HAS SATISFIED THE REQUIREMENTS FOR APPOINTMENT

OF COMPETENT COUNSEL FOR PURPOSES OF

CAPITAL CONVICTION REVIEW PROCEEDINGS

Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effective Death

Penalty Act of 1996, and now codified as chapter 154 of title 28, 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

determining whether to certify that a state is eligible for special procedures in federal habeas 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 establishing 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 compensation—to assess

whether it is adequate for purposes of ensuring that the state mechanism 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Statutory provisions originally enacted as section 107(a) of the Antiterrorism and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, United States Code, make expedited

and other special procedures available to state respondents in federal habeas corpus proceedings

involving review of state capital convictions. Amendments to chapter 154 enacted in 2006

condition the availability of these procedures 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 determines, inter alia, that the 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 [capital] prisoners,” and that the State

“provides standards of competency for the appointment of counsel in [such] proceedings.” 28

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 implement the certification procedure.” Id.

§ 2265(b).

Attorney General Mukasey published a final rule implementing this certification

procedure on December 11, 2008. See 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

Opinions of the Office of Legal Counsel in Volume 33

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 mechanism 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 75,330-75,332. In accord with this approach, the examples that the final rule

offered to illustrate its application gave no indication that the Attorney General would have the

authority to evaluate whether a state appointment mechanism could be expected to ensure the

appointment of counsel who qualify as competent under a federal standard. See 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.” See 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. See 28 C.F.R. § 26.22(b) (setting 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. See Habeas Corpus Res. Ctr. v. Dep’t of Justice, No.

08-2649, at 19-20 (N.D. Cal. Jan. 20, 2009) (order granting motion for preliminary injunction).

Acting Attorney General Filip thereafter instituted a new comment period that ended on April 6,

2009. See 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 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 establishes, and to apply that definition in

making your certification determinations. 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 attorney compensation—to assess whether it is

adequate for purposes of ensuring that the state mechanism will result in the appointment of

competent counsel.

2

Certification of State Compliance with Requirements for

Appointment of Competent Postconviction Counsel in Capital Cases

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

cases1 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 payment 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 purposes.”

28 U.S.C. § 2261(b) (2000). Chapter 154 further provided that the state “rule of court or statute

must provide standards of competency for the appointment of such counsel.” Id.

For almost a decade thereafter, federal courts, in the context of adjudicating 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 at 10 n.5 & 14 n.8.

In 2006, however, Congress enacted section 507(c)(1) of the PATRIOT Improvement

Act, Pub. L. No. 109-177. Pursuant to these amendments, a federal court entertaining a habeas

petition by a state capital prisoner is required to implement 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 appropriate State official,” the Attorney General

“shall determine” the following:

(A) whether the 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;

(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).

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 execution, 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 at 3, it changed these advantages slightly in ways that are not relevant here.

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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 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.

S1620 (daily ed. Mar. 2, 2006) (statement of Sen. Kyl) (observing that review of certification is

vested in the U.S. Court of Appeals for the District of Columbia Circuit, “which does not hear

habeas petitions”).

II.

A.

The preamble to the 2008 final rule makes clear that the rule was intended 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 ambiguous. The preamble explained that such comments “reflected

misunderstandings of the nature of the functions that chapter 154 requires the Attorney General

to perform, and particularly, of the limited legal discretion 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 supplementation. 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 simply allow “any attorney licensed by

the state bar to practice law” to represent indigent capital defendants in postconviction 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” standard

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.

4

Certification of State Compliance with Requirements for

Appointment of Competent Postconviction Counsel in Capital Cases

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 competency for the appointment of counsel in proceedings described in

subparagraph (A).” The preamble to the 2008 final rule reasoned that “[i]n context, 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 competency standards that states must meet for chapter 154

certification, then the section 2265(a)(1)(C) requirement that the states provide such standards

would be superfluous, and section 2265 would be internally inconsistent as to the assignment

of responsibility for setting counsel competency 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.

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

subsection (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 content 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.” Mississippi 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 statutory framework at

issue appears to have specifically charged a federal official with interpretive authority. Congress

assigned the Attorney General—not the States themselves—the function of certifying state

mechanisms, 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

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reasonable litigation expenses of competent 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 intended the Attorney General to resolve the ambiguity and to provide a

reasonable interpretation of the word “competent.” See National 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 delegations of authority to the agency to fill the statutory gap in

reasonable 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, however, 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

established. 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 determinations. The courts’ limited role in this

regard is demonstrated by section 2261(b)(1), which expressly requires courts to accept the

Attorney General’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 reference—either in the provision itself or by cross-

reference—to state standards that would cabin this authority.

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).

6

Certification of State Compliance with Requirements for

Appointment of Competent Postconviction Counsel in Capital Cases

Although the preamble to the 2008 final rule did not contend that Congress expressly

conferred upon the States the preclusive authority to define competency in a manner binding on

the Attorney General’s subsection (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 competency that the Attorney General could reject. 73 Fed. Reg. at 75,331.

We do not see, however, how such a structure would necessarily introduce 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 appointment 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 Wisconsin Dep’t of Health & Family

Servs. v. Blumer, 534 U.S. 473, 495 (2002) (observing that “[t]he Medicaid statute . . . is

designed to advance cooperative federalism,” and that “[w]hen interpreting other statutes so

structured, we have not been reluctant 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 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 assume 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. S1625 (daily ed. 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 substantive 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.

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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 application 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 General would not be adding to the requirements for certification, or otherwise

applying chapter 154 in ways not expressly stated. He would merely be implementing an

express statutory provision—the certification requirement that a State establish a mechanism

for the appointment, compensation, 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 Chevron 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 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. S1624 (daily ed. 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 mechanisms, 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 provisions 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

amendments, 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,

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Certification of State Compliance with Requirements for

Appointment of Competent Postconviction Counsel in Capital Cases

known as the “Powell Committee Report” (because the Committee was chaired by former

Supreme Court Justice Lewis Powell). H.R. Rep. No. 104-23, at 16 (1995). Following 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 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. S1626 (daily ed. 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, “incorporates” 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 advantageous procedures in federal habeas

proceedings brought by capital defendants if the State established “a mechanism for the

appointment, compensation and payment 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 purposes.” 135 Cong. Rec. 24,696 (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.” Id. 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 governing 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 present 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).

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. 3. Congress did not adopt the

Judicial Conference’s suggested amendment that would have established federal statutory

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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 original 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

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 particular—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

4

See Report of the Proceedings of the Judicial Conference of the United States 8 (Mar. 13, 1990); cf.

18 U.S.C.A. § 3599 (West Supp. 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 convictions 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 competence 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 defendants, 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).

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).

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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 competency

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 certification 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. S1620 (daily ed. Mar. 2, 2006)

(statement of Sen. Kyl).6 To address 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 suggests 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 (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 appropriate 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 contained 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. S1625. The 2006 amendments

“abrogated” this ruling by removing the “statute or rule of court” language 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

6

See also 152 Cong. Rec. S1624 (statement of Sen. Kyl) (“AEDPA left the decision of whether a State

qualified for the incentive to the same courts that were impacted by the time limits. This has proved to be a

mistake.”); 151 Cong. Rec. E2640 (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.”).

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paying counsel or providing standards of competency—States may act through their legislatures,

their courts, through agencies such as judicial councils, or even through local governments.” Id.

Finally, the sponsors of the 2006 amendments expressed particular concern with courts

concluding that even when the federal statutory requirements 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 Arizona’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 (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. S1625 (statement

of Sen. Kyl) (similar). According to the sponsors of the legislation, 28 U.S.C. § 2265(a)(3),

which “forbids creation of additional requirements not expressly stated in the chapter, as was

done in the Spears case,” 152 Cong. Rec. S1625, addressed this concern. Congress’s intent to

limit the requirements for certification to those “expressly stated,” therefore, 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 certification. Alternatively, pursuant

to section 2265(b), you may promulgate regulations that set forth the federal minimum

competency standards that 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 construction,” 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

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., American Bar Ass’n, Model Rules of Prof’l Conduct

R. 1.1 (2007) (“Competent representation requires the legal knowledge, skill, thoroughness and preparation

reasonably necessary for the representation.”); and American Bar Association guidelines, see, e.g., American Bar

Ass’n, 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

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Certification of State Compliance with Requirements for

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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 reasonable 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. Although 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 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 construed 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 postconviction

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 mechanism

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

compensation 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 (subsection (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

to determining what is reasonable’”) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)); cf. Bobby v.

Van Hook, 558 U.S.__, 130 S. Ct. 13, 17 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 688-89).

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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).

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

“compensation.” 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. ___, 129 S. Ct. 1498, 1508

(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 agency’s hands”).

This conclusion draws support from the close nexus between the adequacy 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 extraordinary 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 appointment 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 version of section 2261(b) required independent

evaluation of the adequacy of the compensation that a State seeking certification provided the

attorneys 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

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), judgment 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 inadequate”), vacated in part on

other grounds, 105 F.3d 209 (5th Cir. 1997).

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minimally reasonable compensation is necessary to obtain competent counsel, an express

requirement of § 2261(b).” Booth v. Maryland, 940 F. Supp. 849, 854 n.6 (D. Md. 1996),

judgment vacated on other grounds, 112 F.3d 139 (4th Cir. 1997).

Because we have found no evidence in the language or legislative history 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

postconviction 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.

/s/

DAVID J. BARRON

Acting Assistant Attorney General

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 proves inadequate in practice to ensure

appointment of competent counsel.

15