After the jump are the text of the final AEDPA regs with additions indicated in italics and deletions indicated in strikeout. Italics in the original are omitted. Insignificant changes such as the capitalization of "state" are not indicated. The examples in the regulation are unchanged from the June 2007 proposal and are omitted.
§ 26.20 Purpose.
Sections 2261(b)(1) and 2265(a) of title 28 of the United States Code require the Attorney General to certify whether a state has a mechanism for providing legal representation to indigent prisoners in state postconviction proceedings in capital cases that satisfies the requirements of chapter 154 of title 28. If certification is granted, sections 2262, 2263, 2264, and 2266 of chapter 154 ofthe U.S. Code title 28 apply in relation to federal habeas corpus review of capital cases from the state. Subsection (b) of 28 U.S.C. 2265 directs the Attorney General to promulgate regulations to implement the certification procedure under subsection (a) of that section.
§ 26.21 Definitions.
For purposes of this part, the term--
Appropriate state official means the State Attorney General, except that, in a state in which the State Attorney General does not have responsibility for federal habeas corpus litigation, it means the Chief Executive thereof.
State postconviction proceedings means collateral proceedingsfollowing direct State review or expiration of the time for seeking direct State review, except that, in a State with a unitary review system under which direct review and collateral review take place concurrently, the term includes the collateral review aspect of the unitary review process. in state court, regardless of whether the state conducts such proceedings after or concurrently with direct state review.
§ 26.22 Requirements.
A state meets the requirements for certification under 28 U.S.C. 2261 and 2265 if the Attorney General determines each of the following to be satisfied:
(a) The state has established a mechanism for the appointment of counsel for indigent prisoners under sentence of death in state postconviction proceedings. As provided in 28 U.S.C. 2261(c) and (d), the mechanism must offer to all such prisoners postconviction counsel, who may not be counsel who previously represented the prisoner at trial unless the prisoner and counsel expressly request continued representation, and the mechanism must provide for the entry of an order by a court of record--
(1) Appointing one or more attorneys as counsel 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.
[Examples omitted.]
(b) The state has established a mechanism for compensation of appointed counsel in state postconviction proceedings in capital cases.
[Examples omitted.]
(c) The state has established a mechanism for the payment of reasonable litigation expenses of appointed counsel in state postconviction proceedings in capital cases.
[Examples omitted.]
(d) The state provides competency standards for the appointment of counsel representing indigent prisoners in capital cases in state postconviction proceedings.
[Examples omitted.]
§ 26.23 Certification process.
(a) An appropriate state official may request that the Attorney General determine whether the state meets the requirements for certification under § 26.22.
(b) The request shall include:
(1) An attestation by the submitting state official that he or she is the "appropriate state official" as defined in § 26.21; and
(2) An affirmation by the state that it has provided notice of its request for certification to the chief or presiding justice or judge of the state's highest court with jurisdiction over criminal matters.
(c) Upon receipt of a state's request for certification, the Attorney General will publish a notice in the Federal Register--
(1) Indicating that the state has requested certification;
(2) Listing any statutes, regulations, rules, policies, and other authorities identified by the state in support of the request; and
(3) Soliciting public comment on the request.
(d) The state's request will be reviewed by the Attorney General, who may, at any time, request supplementary information from the state or advise the state of any deficiencies that would need to be remedied in order to obtain certification. The review will include consideration of timely public comments received in response to the Federal Register notice under paragraph (c) of this section. The certification will be published in the Federal Register if certification is granted. The certification will include a determination of the date the capital counsel mechanism qualifying the state for certification was established.
(e) Upon certification by the Attorney General that a state meets the requirements of § 26.22, such certification is final and will not be reopened. Subsequent changes in a state's mechanism for providing legal representation to indigent prisoners in state postconviction proceedings in capital cases do not affect the validity of a prior certification or the applicability of chapter 154 in any case in which a mechanism certified by the Attorney General existed during state postconviction proceedings in the case.If a State with a certified mechanismamends governing State law to change its mechanism in a manner that may affect satisfaction of the requirements of § 26.22, the certification of the State's mechanism prior to the change does not apply to the changed mechanism, but the However, a state may request a new certification by the Attorney General that the changed mechanism satisfies therequirements of § 26.22. to resolve uncertainties concerning or meet challenges to the applicability of chapter 154 in relation to federal habeas corpus review of capital cases from the state based on changes or alleged changes in the state's capital counsel mechanism.
Sections 2261(b)(1) and 2265(a) of title 28 of the United States Code require the Attorney General to certify whether a state has a mechanism for providing legal representation to indigent prisoners in state postconviction proceedings in capital cases that satisfies the requirements of chapter 154 of title 28. If certification is granted, sections 2262, 2263, 2264, and 2266 of chapter 154 of
§ 26.21 Definitions.
For purposes of this part, the term--
Appropriate state official means the State Attorney General, except that, in a state in which the State Attorney General does not have responsibility for federal habeas corpus litigation, it means the Chief Executive thereof.
State postconviction proceedings means collateral proceedings
§ 26.22 Requirements.
A state meets the requirements for certification under 28 U.S.C. 2261 and 2265 if the Attorney General determines each of the following to be satisfied:
(a) The state has established a mechanism for the appointment of counsel for indigent prisoners under sentence of death in state postconviction proceedings. As provided in 28 U.S.C. 2261(c) and (d), the mechanism must offer to all such prisoners postconviction counsel, who may not be counsel who previously represented the prisoner at trial unless the prisoner and counsel expressly request continued representation, and the mechanism must provide for the entry of an order by a court of record--
(1) Appointing one or more attorneys as counsel 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.
[Examples omitted.]
(b) The state has established a mechanism for compensation of appointed counsel in state postconviction proceedings in capital cases.
[Examples omitted.]
(c) The state has established a mechanism for the payment of reasonable litigation expenses of appointed counsel in state postconviction proceedings in capital cases.
[Examples omitted.]
(d) The state provides competency standards for the appointment of counsel representing indigent prisoners in capital cases in state postconviction proceedings.
[Examples omitted.]
§ 26.23 Certification process.
(a) An appropriate state official may request that the Attorney General determine whether the state meets the requirements for certification under § 26.22.
(b) The request shall include:
(1) An attestation by the submitting state official that he or she is the "appropriate state official" as defined in § 26.21; and
(2) An affirmation by the state that it has provided notice of its request for certification to the chief or presiding justice or judge of the state's highest court with jurisdiction over criminal matters.
(c) Upon receipt of a state's request for certification, the Attorney General will publish a notice in the Federal Register--
(1) Indicating that the state has requested certification;
(2) Listing any statutes, regulations, rules, policies, and other authorities identified by the state in support of the request; and
(3) Soliciting public comment on the request.
(d) The state's request will be reviewed by the Attorney General, who may, at any time, request supplementary information from the state or advise the state of any deficiencies that would need to be remedied in order to obtain certification. The review will include consideration of timely public comments received in response to the Federal Register notice under paragraph (c) of this section. The certification will be published in the Federal Register if certification is granted. The certification will include a determination of the date the capital counsel mechanism qualifying the state for certification was established.
(e) Upon certification by the Attorney General that a state meets the requirements of § 26.22, such certification is final and will not be reopened. Subsequent changes in a state's mechanism for providing legal representation to indigent prisoners in state postconviction proceedings in capital cases do not affect the validity of a prior certification or the applicability of chapter 154 in any case in which a mechanism certified by the Attorney General existed during state postconviction proceedings in the case.
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