Proposed Revisions to Federal Habeas Statutes (1990)

Short Name: Proposed Revisions to Federal Habeas Statutes
Year Adopted: 1990
Meeting Where Adopted: Mid-Year
Policy Number: 1990 MY 115E
Subjects: Death Penalty, Post-Conviction/Habeas Corpus, Appointment of Counsel, Effective Assistance of Counsel, Statute of Limitations, Equitable Tolling

Resolution Text:

BE IT RESOLVED, That the American Bar Association urges that the following measures be taken in the litigation of death penalty cases:

1) Because many of the defects and delays in habeas corpus procedure are due to the fact that the accused was not represented by competent counsel, particularly at the trial level, the state and federal governments should be obligated to provide competent and adequately compensated counsel for capital defendants/appellants/petitioners, as well as to provide sufficient resources for investigation, expert witnesses, and other services, at all stages of capital punishment litigation. The American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases should govern the appointment and compensation of counsel. 

2) The individual or organization responsible for appointing counsel should enlist the assistance of the local bar association and resource center to seek the best qualified attorneys available.

3) Jurisdictions that have the death penalty should establish and fund organizations to recruit, select, train, monitor,  support, and assist attorneys involved at all stages of capital litigation and, if necessary, to participate in the trial of such cases.

4) New counsel should be appointed to represent the death-sentenced inmate for the state direct appeal unless the appellant requests the continuation of trial counsel after having been fully advised of the consequences of his or her decision, and the appellant waives the right to new counsel on the record.

 5) To avoid the delay occasioned by the appointment of new counsel for post-conviction proceedings and to assure continued competent representation, state appellate counsel who represented a death-sentenced inmate should continue representation through all subsequent state, federal, and United States Supreme Court proceedings.

 6) To assure that the state provides competent representation and to avoid procedural delays as well as multiple review of the same issues, the following procedural barriers to federal habeas corpus review should not apply with respect to any state court proceeding at which the state court, in deprivation of the right to counsel recognized in paragraph "1" above, failed to appoint competent and adequately compensated counsel to represent the defendant/appellant/petitioner:

(a) exhaustion of state judicial remedies,

 (b) procedural default rules ; and

 (c) the presumption of correctness of state court findings of fact.

7) Federal courts should not rely on state procedural bar rules to preclude consideration of the merits of a claim if the prisoner shows that the failure to raise the claim in a state court was due to the ignorance or neglect of the prisoner or counsel or if the failure to consider such a claim would result in a miscarriage of justice.

 8) State appellate courts should review under a knowing, understanding, and voluntary waiver standard all claims of constitutional error not properly raised at trial and on appeal and should have a plain error rule and apply it liberally with respect to errors of state law.

9) On the initial state post-conviction application, state post-conviction courts should review under a knowing, understanding, and voluntary waiver standard all claims of constitutional error not properly preserved at trial or on appeal. 

10) The federal courts should adopt rules designed to facilitate both the presentation of all available claims in the first habeas corpus petition and the prompt exhaustion of any unexhausted claims in order to eliminate the problem of procedurally forced successive petitions. 

11) A rational process of review will be facilitated by a stay of execution that remains in force until the completion of the initial round of state and federal post-conviction review. Therefore, unless the state courts grant a stay of execution, the federal courts, in preservation of their habeas corpus jurisdiction, should grant a stay of execution to run from the initiation of state post-conviction proceedings through the completion of the initial round of federal habeas corpus proceedings, and should be empowered to do so.

12) The petitioner should have a right of appeal from denial of an initial federal habeas corpus petition without the need to obtain a certificate of probable cause. 

13) A one-year limitations period should be employed as a substitute mechanism to move the case toward reasonably prompt completion, but only with adequate and sufficient tolling provisions to permit full and fair consideration of a petitioner's claims in state court, federal court, and the United States Supreme Court. The sanction for failure to comply with the time requirements should be dismissal, except that the time requirements should be waived where the petitioner has presented a colorable claim, which has not been presented previously, either of factual innocence or of the petitioner's ineligibility for the death penalty. 

14) A federal court should entertain a second or successive petition for habeas corpus relief if: 

(a) the request for relief is based on a claim not previously presented by the prisoner in the state and federal courts and the failure to raise the claim is the result of state action in violation of the Constitution or laws of the United States, the result of Supreme Court recognition of a new federal right that is retroactively applicable, or based on a factual predicate that could not have been discovered through the exercise of reasonable diligence; 


(b) the facts underlying the claim would be sufficient, if proven, to undermine the court's confidence in the jury's determination of guilt on the offense or offenses for which the death penalty was imposed; or

(c) consideration of the requested relief is necessary to prevent a miscarriage of justice.

 15) The standard for determining whether changes in federal constitutional law should apply retroactively should be whether failure to apply the new law would undermine the accuracy of either the guilt or the sentencing determination.

 16) To afford the states a reasonable time to adopt and implement rules and procedures pursuant to these recommendations, the proposed federal statutory and rule changes should take effect upon adoption by the states of provisions in accordance with these recommendations, but not later than two years from the date of enactment of federal legislation; and

BE IT FURTHER RESOLVED, That the American Bar Association commends to Congress the sample legislation attached in Appendix "B" as a way to implement these Recommendations.

Download official pdf version with resolution text and accompanying report.