§ 2261. — Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2261]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES
Sec. 2261. Prisoners in State custody subject to capital
sentence; appointment of counsel; requirement of rule of court
or statute; procedures for appointment
(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) 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.
(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 or on direct appeal 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.
(Added Pub. L. 104-132, title I, Sec. 107(a), Apr. 24, 1996, 110 Stat.
1221.)
Effective Date
Section 107(c) of Pub. L. 104-132 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].''
Section Referred to in Other Sections
This section is referred to in sections 2262, 2265 of this title.
