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Challenge to Death Row Attorney Rule Dismissed

SAN FRANCISCO (CN) - The Ninth Circuit on Wednesday ordered dismissal of a case challenging proposed changes to the federal rule for the appointment and compensation of counsel for death-row prisoners, overturning a federal judge's finding that the changes are "procedurally deficient."

The case involves procedural incentives afforded to states that guarantee death-sentenced prisoners competent counsel and reasonable litigation resources in federal review of state capital convictions, under Chapter 154 in Title 28 of the U.S. Code. Incentives include significantly shortening the statute of limitations for federal habeas corpus cases and expediting such proceedings.

In 2005, the Patriot Act amended Chapter 154 by giving the attorney general control over certifying the mechanisms that a state uses to appoint and compensate counsel for inmates scheduled for execution. The change also allegedly holds the attorney general to the regulatory requirements of the Administrative Procedure Act (APA).

Habeas Corpus Resource Center and Arizona's public defender's office sued the Justice Department and the Attorney General over a rule issued in 2013 that they say does not require states to provide any information that they have mechanisms in place to ensure that inmates receive quality, fairly compensated attorneys.

U.S. District Judge Claudia Wilken found for the legal organizations in 2014 and ordered the Department of Justice to remedy the rule's alleged defects.

But the Ninth Circuit's three-judge panel vacated Wilken's ruling and remanded the case to the district court with orders to dismiss it, finding that the plaintiffs had no standing to bring the suit.

The organizations' declarations do not demonstrate that they have suffered "a legally cognizable injury in fact," said Circuit Judge Carlos Bea, who authored the panel's 26-page opinion.

Bea said the panel "did not disagree with the defender organizations on several points," such as the proposed regulations' adverse effects on prisoners and the fact that shorter statutes of limitations may affect attorneys' legal strategies.

"However, we fail to see how the defender organizations have suffered a concrete, particularized injury sufficient to give them standing to challenge the final regulations," he wrote.

Bea added that "bare uncertainty" regarding the validity and applicability of the regulations cannot support standing.

"Assisting and counseling clients in the face of legal uncertainty is the role of lawyers, and, notably, the defender organizations have not cited any authority suggesting that lawyers suffer a legally cognizable injury in fact when they take measures to protect their clients' rights or alter their litigation strategy amid legal uncertainty," he wrote.

Bea also found that "this theory of injury would permit attorneys to challenge any governmental action or regulation when doing so would make the scope of their clients' rights clearer and their strategies to vindicate those rights more easily selected."

And even though the plaintiffs' clients may suffer harm from "confusion" caused by the proposed regulations, Bea found that there is "no reason to believe that [the plaintiffs] can parlay such harm into an injury of their own."

The Circuit also refused to grant the organizations' request for a limited remand to afford their death-sentenced clients an opportunity to intervene, holding that the case's challenges are not yet ripe for review.

Attorney Marc Shapiro, who represented the plaintiffs, was critical of the decision in an emailed statement to Courthouse News.

"Today's decision enables states to pursue fast-tracked federal habeas review without any assurance that individuals have been appointed competent state counsel or that they received the requisite funds necessary to demonstrate their convictions and sentences were properly obtained," Shapiro wrote. "The fallout for our clients - two government entities with fixed budgets that are statutorily charged with protecting the rights of death row prisoners - cannot be overstated.

"In Arizona, for example, the moment this regulation takes effect, we will be forced to scramble to find avenues to file petitions and, in the process, required to divert resources from some clients to others. Operating under that conflict, our clients risk defaulting claims for a significant cohort of individuals and place others in jeopardy of filing no petition at all."

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