chevron-down Created with Sketch Beta.

Opposition to Federal Habeas Legislation (1982)

Short Name: Opposition to Federal Habeas Legislation
Year Adopted: 1982
Meeting Where Adopted: Annual
Policy Number: 1982 AM 112d
Subjects: Death Penalty, Habeas Corpus

Resolution Text:

BE IT RESOLVED, That the American Bar Association opposes habeas corpus “reform” legislation, such as S. 653, Title VII of H.R. 4898, and S. 2216 of the 97th Congress; and

II. BE IT FURTHER RESOLVED, That the American Bar Association supports adoption of procedures in state and federal courts to expedite appropriately the legal steps which must be pursued between entry of the judgment of conviction by the state court and resolution of the federal habeas corpus proceeding, including:

(a) expediting the direct state appellate process, including prompt preparation of transcript and court scheduling orders for the filing of briefs by the attorneys;

(b) expediting any state post-conviction remedy necessary for exhaustion of state remedies under Picard v. Connor, 404 U.S. 270 (1971);

(c) if appropriate under state rules and statutes, use of a unified review process in which the direct appeal is held in abeyance while issues not adequately raised by the record below are examined. The two proceedings would be consolidated if the intervening collateral proceeding were unsuccessful;

(d) prompt submission by the state to the federal court considering a petition for habeas corpus of all state court documents or copies of them, including the transcript of trial (which should have been prepared for the state appellate procedures) and the briefs filed by the parties in the state appellate courts;

(e) strict time requirements for the filing of memoranda in the federal habeas corpus proceeding;

(f) prompt disposition by the habeas corpus court of the petition for habeas corpus relief; and


III. BE IT FURTHER RESOLVED, That the American Bar Association supports the prompt availability of competent counsel for both state and federal court proceedings, essential in many instances to enable the federal courts fairly and expeditiously to evaluate the merits of a claim presented in a habeas corpus petition, including:

(a) Prompt appointment of competent counsel to pursue state appellate process, state post-conviction remedies, or unified review process;

(b) Appointment of counsel other than trial counsel should any question of trial counsel’s competence be an issue;

(c) Counsel in the state appellate process, post-conviction review process, or unified review procedure should be trained to present in the state courts the facts and legal precedents which form the basic federal constitutional issues raised by the cause;

(d) Counsel should be made available at prisons to permit conference with potential petitioners to determine whether federal constitutional issues are presented by their cases and, where such issues exist, to prepare habeas corpus petitions;

(e) Absent earlier availability of counsel, the federal district judge should appoint counsel under the Criminal Justice Act to prepare complete, factually and legally documented habeas corpus petitions, or to amend petitions filed pro se. Counsel should be assigned if any non-frivolous constitutional issue is presented and unless it is established beyond doubt that there has been no exhaustion;

(f) Compensation of counsel for the representation of habeas corpus petitioners should be made at a air rate of payment;

(g) A system of monitoring both assigned and retained counsel to assure competency of performance should be instituted; and

IV. BE IT FURTHER RESOLVED, That the American Bar Association supports establishment of a high standard for competence of counsel for the defendant or petitioner that is uniform for all proceedings in all jurisdictions:

(a) The standard should accord with ABA STANDARDS FOR CRIMINAL JUSTICE, THE DEFENSE FUNCTION, Standard 4-1.1 (2d ed. 1980);

(b) The standard should require the exercise of skill and knowledge expected of an attorney experienced in the practice of criminal and constitutional law;

(c) Assuming the presentation by counsel who has performed in accord with the standard of competence set out above, the federal habeas corpus court should examine successive petitions in accord with Sanders v. United States, 373 U.S. 1 (1963), which has been promulgated as 28 U.S.C. §2244 and Rule 9(b) of the Rules for §2254 petitions unless a petitioner comes within an exception to the rule;

(d) Assuming the presentation by counsel who has performed in accord with the standard of competence, the habeas corpus court should apply the standard against delayed filing under Rule 9(a) of the Rules for §2254 petitions unless the petitioner comes within an exception to the rule;

(e) A failure to meet the standard articulated herein for measuring competence of counsel should be treated by the courts as inadequate representation under the Sixth Amendment and “cause” excusing a failure to raise a specific issue for consideration by the state court.

Download official pdf version with resolution text and accompanying report.