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Defects Contested in New Death-Row Counsel Rules

SAN FRANCISCO (CN) - A new rule governing the appointment and compensation of counsel for death-row prisoners has "fatal defects," lawyers for the indigent claim in Federal Court.

The Habeas Corpus Resource Center and the Office of the Federal Public Defender for the District of Arizona sued the U.S. Department of Justice (DOJ) and U.S. Attorney General Eric Holder seeking to delay the effective date of the rule until resolution of the alleged defects.

The Final Rule regarding Certification of State Capital Counsel Systems issued by the DOJ is set to go into effect on Oct. 23, 2013.

States that guarantee death-sentenced prisoners competent counsel and reasonable litigation resources are provided with procedural incentives in federal review of state capital convictions, under Chapter 154 in Title 28 of the U.S. Code.

"Once a state is certified to have established a satisfactory mechanism to fulfill that guarantee, the statute of limitations for federal habeas corpus proceedings in federal court is greatly shortened, the federal habeas corpus proceedings are greatly expedited, and judicial review of state judgments is sharply curtailed," according to the complaint.

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).

The amendments "left intact the critical requirements that states appoint and compensate competent counsel and provide reasonable litigation expenses for indigent death-sentenced individuals in state post-conviction proceedings in order to qualify for the truncated statute of limitations, procedural limitations, and 'fast track' deadlines for federal habeas corpus actions reviewing state court death penalty convictions," the complaint states.

Those appropriate standards and procedures for state certification are now in alleged jeopardy, however, after the Justice Department issued a new rule on Sept. 23, 2013.

"There is an inherent bias and appearance of impropriety from having capital prosecutors shape a rule and conduct the factual inquiry that affects the rights of capital prisoners to effective defense counsel and their ability to seek post-conviction relief," the groups claim (emphasis in original).

Among other defects, the rule allegedly does not require a state requesting certification to provide any information as to the state's mechanism for assuring that it will provide competent counsel and adequate compensation and litigation expenses. A state essentially need only assert that it is compliant with the requirements, according to the complaint.

"The Final Rule also fails to establish adequate minimum standards of counsel competency," the complaint states. "By including a vague 'catch-all' provision that allows for certification if the state standards 'reasonably assure a level of proficiency appropriate for state post-conviction litigation in capital cases,' the Final Rule creates a certification process that is based on ad hoc and arbitrary determinations, rather than the objective standards the APA and the Constitution demand."

Another failure is evident in the dearth of information on criteria the attorney general will be using to review certification applications, according to the complaint. The rule allegedly says that the attorney general's review does not require a factually detailed examination of how a state will implement its mechanism.

Errors during state certification "ultimately deprive indigent capital habeas corpus petitions of their rights under the due process clause of the United States Constitution, and to appropriate federal judicial review of their capital convictions and death sentences," according to the complaint.

The resource center and federal defender's office ask the court to find the rule unlawful and set it aside for failing to comply with the requirements of the APA and the due process clause, or to enjoin the effective date of the rule pending a review of the actions by the DOJ and attorney general.

They are represented by Catherine Lui with Orrick, Herrington & Sutcliffe.

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