28 U.S.C. § 2261: Prisoners in State custody…

Summary

Applies to cases brought under section 2254 by prisoners in State custody who face a death sentence, but only if the rules in parts (b) and (c) are met. One rule is that the U.S. Attorney General must certify the State has a system under section 2265 to provide counsel. The other rule is that the prisoner either had counsel appointed under that system, waived counsel, hired their own lawyer, or was found not to be poor. The State’s system must offer a lawyer to every prisoner under a death sentence and require a court of record to make one of three written findings: appoint counsel if the prisoner is poor and accepts or cannot competently decide; record that the prisoner knowingly refused counsel after any needed hearing; or deny appointment if the prisoner is not poor. A post‑conviction lawyer cannot be the trial lawyer unless both the prisoner and lawyer want that. Poor performance by counsel in post‑conviction work is not a basis for relief under section 2254, but a court may replace counsel at any time for ineffectiveness.

Title 28, §2261

Judiciary and Judicial Procedure, Source: USLM XML via OLRC

(a)This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.

(b)Counsel.—

This chapter is applicable if—

(1)the Attorney General of the United States certifies that a State has established a mechanism for providing counsel in postconviction proceedings as provided in section 2265; and

(2)counsel was appointed pursuant to that mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent.

(c)Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record—

(1)appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;

(2)finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or

(3)denying the appointment of counsel upon a finding that the prisoner is not indigent.

(d)No counsel appointed pursuant to subsections (b) and (c) to represent a State prisoner under capital sentence shall have previously represented the prisoner at trial in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.

(e)The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254. This limitation shall not preclude the appointment of different counsel, on the court’s own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness or incompetence of counsel in such proceedings.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2006—Subsec. (b). Pub. L. 109–177, § 507(a), added subsec. (b) and struck out former subsec. (b) which read as follows: “This chapter is applicable if a State establishes 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. The rule of court or statute must provide standards of competency for the appointment of such counsel.” Subsec. (d). Pub. L. 109–177, § 507(b), struck out “or on direct appeal” after “at trial”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2006 AmendmentAmendment by Pub. L. 109–177 applicable to cases pending on or after Mar. 9, 2006, with special rule for certain cases pending on that date, see section 507(d) of Pub. L. 109–177, set out as a note under section 2251 of this title.

Effective Date

Pub. L. 104–132, title I, § 107(c), Apr. 24, 1996, 110 Stat. 1226, provided that: “Chapter 154 of title 28, United States Code (as added by subsection (a)) shall apply to cases pending on or after the date of enactment of this Act [Apr. 24, 1996].”

§2261 Prisoners in State Custody Subject to Capital Sentence; Appointment of Counsel; Requirement of Rule of Court or Statute; Procedures for Appointment

Summary

Title 28, §2261

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata