U.S. Code » Title 28 » Part PART VI— PARTICULAR PROCEEDINGS › Chapter CHAPTER 154— SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES

28 U.S.C. § 2261

Prisoners in State custody subject to capital sentence; appointment of counsel; requirement of rule of court or statute; procedures for appointment

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(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.(Added Pub. L. 104–132, title I, § 107(a), Apr. 24, 1996, 110 Stat. 1221; amended Pub. L. 109–177, title V, § 507(a), (b), Mar. 9, 2006, 120 Stat. 250.)Editorial NotesAmendments

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 SubsidiariesEffective Date of 2006 Amendment

Amendment 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].”

Notes of Decisions
Cited in 143 cases (10 in the last 5 years), 1996–2026 · leading case: Williams v. State, 251 S.W.3d 290 (Ark. 2007).
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Williams v. State, 251 S.W.3d 290 (Ark. 2007). · cites it 4× “2006), is an attempt to comply with the “opt-in provisions” of 28 U.S.C. § 2261 , which provides in pertinent part: (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…”
Spears v. Stewart, 283 F.3d 992 (9th Cir. 2002). · cites it 20× “However, the court concluded that Arizona’s offer of counsel did not comply with 28 U.S.C. § 2261 in other respects. On slip opinion page 13551: delete footnote 19.”
Hill v. Butterworth, 941 F. Supp. 1129 (N.D. Fla. 1996). · cites it 12× “§§ 2241-55, but also creates a new set of procedures—Chapter 154, 28 U.S.C. §§ 2261 -66—for resolving death-sentenced prisoners’ federal habeas corpus cases.”
Tucker v. Catoe, 221 F.3d 600 (4th Cir. 2000). · cites it 8× “In order for the expedited habeas corpus procedures for capital cases (“capital-specific provisions”) promulgated in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) to control, a state must first satisfy the provisions of 28 U.S.C. § 2261 (b) & (c) (2000):…”
Juan Carlos Chavez v. Sec'y, Florida Dep't of Corr., 742 F.3d 940 (11th Cir. 2014). · cites it 4× “2546, 2566 (1991); see also 28 U.S.C. § 2261 (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.”
Kelley v. Sec'y for the Dep't of Corr., 377 F.3d 1317 (11th Cir. 2004). · cites it 2× “at 1221 (codified as note to 28 U.S.C. § 2261 ). Because the statute contained no similar indication about the reach of the amendments to chapter 153, the Supreme Court concluded that AEDPA’s text fairly implies “that the new provisions of chapter 153 generally apply only to…”
Duncan v. Walker, 533 U.S. 167 (2001). “” Likewise, the first sentence of 28 U. S. C. § 2261 (e) (1994 ed., Supp. V) provides: “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…”
Paul Kreutzer v. Michael S. Bowersox, Warden, Superintendent, 231 F.3d 460 (8th Cir. 2000). · cites it 3× “See 28 U.S.C. §§ 2261 (b), 2265(b). If a state meets these criteria, chapter 154 is applicable and the state may seek to apply the expedited 180-day statute of limitations.”
Stephen Redd v. Patricia Guerrero, 84 F.4th 874 (9th Cir. 2023). · cites it 5× “” California Government Code section 68662(a) further provides that the court “shall enter an order” appointing habeas counsel for state prisoners subject to death sentences “upon a finding that the person is indigent and has accepted the offer to appoint counsel” (emphasis…”
Ashmus v. Calderon, 31 F. Supp. 2d 1175 (N.D. Cal. 1998). · cites it 13× “” 28 U.S.C. § 2261 (a) (emphasis added). Subsection (b) provides: 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…”
Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000). · cites it 7× “2000), maintaining that the district court incorrectly ruled that Maryland has not satisfied the “opt-in” requirements of 28 U.S.C.A. § 2261 (b), (c) (West Supp.2000).”
Wright v. Angelone, 944 F. Supp. 460 (E.D. Va. 1996). · cites it 7× “28 U.S.C. § 2261 . More specifically, a state must meet all four of the following criteria: 1.”
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— 28 U.S.C. § 2261(b) — 1 case
Oken v. Nuth, 30 F. Supp. 2d 877 (D. Maryland 1998).
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