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Holder Rescinds AEDPA Regs

As expected (prior post here) AG Holder has rescinded the already long-delayed regulations to implement the certification procedure by which states that provide qualified counsel on state habeas are supposed to get expedited review of their cases in federal habeas.

This "fast track" program is set up by Chapter 154 of title 28, United States Code, §§2261-2266.  Section 2265(b) provides, "The Attorney General shall promulgate regulations to implement the certification procedure under subsection (a)."  The AG is given no authority to promulgate regulations governing the substantive criteria for qualification.  Congress has reserved that authority to itself, providing in paragraph (a)(3), "There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter."

Today's notice of rescission of the regulations states, in response to CJLF's objections, "it makes little sense to retain that process in the absence of substantive certification criteria."  No, it makes no sense to write substantive criteria into regulations when Congress has expressly provided that the D.C. Circuit's review of certification decisions will be de novo, with no deference to what DoJ decides.  The statutory criteria, as the D.C. Circuit or ultimately the Supreme Court construe them, are all that matter.

Memo to incoming House Judiciary Chairman Lamar Smith: Bring Mr. Holder before the Committee to explain himself as one of the first items of business in the 112th Congress.

And put a line in DoJ's appropriation bill that the previously promulgated regulations are reinstated effective immediately.


The states should simply apply, and if the court rejects their application, then they should ask for mandamus. This obstructionism by Holder is appalling.

Hopefully one of the newly elected AGs will have the backbone to do that. Probably not in California, alas.

Holder is dragging his feet on the federal government's lethal injection litigation. It is beyond ridiculous that 2 1/2 years after Baze that the US DOJ can't get the courts to get off their duff to rule. There are a lot of distasteful people in this administration--if Eric Holder is not at the top of that list, he sure is close.

28 U.S.C. §2265(a)

If requested by an appropriate State official, the Attorney General of the United States shall determine—
(A) whether the State has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners who have been sentenced to death;
(B) the date on which the mechanism described in subparagraph (A) was established; and
(C) whether the State provides standards of competency for the appointment of counsel in proceedings described in subparagraph (A).


(b) Regulations.— The Attorney General shall promulgate regulations to implement the certification procedure under subsection (a).

I'm curious as to why you think that Congress' express command that the AG make a substantive determination should be ignored. Simply because a court's review of a decision will be de novo does not mean the initial decision should be without any kind of guidelines at all. Phrases like 'reasonable litigation expenses' or 'competent counsel' are not exactly self-evident. Congress could have chosen to define that with rather more precision. They did not do so, leaving the job to the AG instead.

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