Wednesday, April 10, 2019

District Court Tosses Challenge to Capital Post-Conviction Counsel Regs

Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge. 

Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.

The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.

DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively." 

Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.

So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.

Applying Havens Realty Corp. v. Coleman, the court held that

because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in post[]conviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."

But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost[] beyond those normally expended to carry out its advocacy mission.'"

As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."

The court also ruled that the plaintiffs' claims weren't ripe for review.

https://lawprofessors.typepad.com/conlaw/2019/04/district-court-tosses-challenge-to-capital-post-conviction-counsel-regs.html

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