Certification of Arizona Capital Counsel Mechanism

Citation85 FR 20705
Record Number2020-07617
Published date14 April 2020
SectionNotices
CourtJustice Department
Federal Register, Volume 85 Issue 72 (Tuesday, April 14, 2020)
[Federal Register Volume 85, Number 72 (Tuesday, April 14, 2020)]
                [Notices]
                [Pages 20705-20721]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-07617]
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                DEPARTMENT OF JUSTICE
                [Docket No. OAG-167; AG Order No. 4666-2020]
                Certification of Arizona Capital Counsel Mechanism
                AGENCY: Office of the Attorney General, Department of Justice.
                ACTION: Notice.
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                SUMMARY: Federal law makes certain procedural benefits available to
                States in federal habeas corpus review of capital cases, where the
                Attorney General certifies that the State has established a
                postconviction capital counsel mechanism satisfying the chapter's
                requirements. The Attorney General certifies in this notice that
                Arizona has such a mechanism, which was established on May 19, 1998.
                [[Page 20706]]
                DATES: Pursuant to 28 U.S.C. 2265(a)(2), the effective date of the
                certification in this notice is May 19, 1998.
                FOR FURTHER INFORMATION CONTACT: Laurence Rothenberg, Deputy Assistant
                Attorney General, Office of Legal Policy, U.S. Department of Justice,
                950 Pennsylvania Avenue NW, Washington, DC 20530; telephone (202) 532-
                4465.
                 Certification: Chapter 154 of title 28, United States Code,
                provides special federal habeas corpus review procedures for state
                capital cases where (i) the Attorney General has certified that the
                State has established a postconviction counsel appointment mechanism
                for indigent capital defendants that meets the requirements stated in
                the chapter, and (ii) counsel was appointed pursuant to the certified
                mechanism, the defendant validly waived or retained counsel, or the
                defendant was not indigent. 28 U.S.C. 2261(b). Chapter 154 directs the
                Attorney General to determine, if requested by an appropriate state
                official, whether the State has established a qualifying mechanism for
                appointment of postconviction capital counsel, the date on which the
                mechanism was established, and whether the State provides standards of
                competency for such appointments. Id. Sec. 2265(a).
                 Having considered the relevant statutes, rules, and policies in
                Arizona, submissions by the Arizona Attorney General, and the extensive
                public comments thereon, and exercising the authority conferred on me
                by 28 U.S.C. 2265, I determine and certify that Arizona 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, including provision of standards of competency for
                the appointment of counsel in such proceedings, which satisfies the
                requirements of chapter 154. I further determine and certify that
                Arizona had an established capital counsel mechanism satisfying the
                requirements of chapter 154 as of May 19, 1998, and that Arizona has
                continuously had a capital counsel mechanism satisfying the
                requirements of chapter 154 since that date. Arizona has not requested
                certification of its postconviction capital counsel mechanism as it was
                prior to May 19, 1998, and this certification reflects no judgment or
                opinion whether Arizona had a postconviction capital counsel mechanism
                satisfying the requirements of chapter 154 before that date.
                SUPPLEMENTARY INFORMATION: The remainder of this notice explains the
                background of, and reasons for, my certification of Arizona's
                postconviction capital counsel mechanism under the following headings:
                I. Procedural History
                II. Assessment of Arizona's Mechanism Under Chapter 154
                 A. Chapter 154--As Enacted in 1996 and As Amended in 2006
                 B. Appointment Requirement and Procedures
                 C. Counsel Competency
                 D. Compensation of Counsel
                 E. Payment of Reasonable Litigation Expenses
                 F. Timeliness of Appointment
                III. Date the Mechanism Was Established
                IV. Other Matters
                 A. Time Limits under Chapter 154
                 B. Validity of the Implementing Rule
                 C. Request for a Stay
                I. Procedural History
                 Chapter 154 applies to cases arising under 28 U.S.C. 2254 brought
                by prisoners in State custody who are subject to a capital sentence 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.'' 28 U.S.C. 2261(b). Where the chapter applies, federal
                habeas review is conducted in conformity with special provisions
                relating to stays of execution, the time available for federal habeas
                filing, the scope of federal habeas review, and the time for completing
                the adjudication of federal habeas petitions. See 28 U.S.C. 2262-66.
                 Chapter 154 derives from a proposal developed in 1989, under the
                leadership of Justice Lewis F. Powell, to address the problem of
                protracted and repetitive litigation in capital cases and to fill a gap
                in representation for capital defendants at the stage of state
                postconviction review. The proposal contemplated that more expeditious
                procedures would apply, with greater finality, in federal habeas corpus
                review of capital cases in States that appoint counsel for indigent
                capital defendants in state collateral proceedings. See 135 Cong. Rec.
                24694-98 (1989); 137 Cong. Rec. 6012-14 (1991); H.R. Rep. 104-23, at
                10-11 (1995) (House Judiciary Committee Report).
                 Congress enacted chapter 154 as part of the Antiterrorism and
                Effective Death Penalty Act of 1996. See Public Law 104-132, sec.
                107(a), 110 Stat. 1214, 1221-26. Under chapter 154 in its original
                form, federal habeas courts determined the applicability of chapter
                154's expedited federal habeas review procedures in the context of
                adjudicating federal habeas petitions filed by state capital
                defendants. Litigation relating to States' satisfaction of chapter
                154's requirements ensued in various States, resulting in a substantial
                body of district court and court of appeals precedent interpreting
                chapter 154, as well as a related decision by the Supreme Court in
                Calderon v. Ashmus, 523 U.S. 740 (1998).
                 In relation to Arizona, in particular, the Ninth Circuit Court of
                Appeals, in Spears v. Stewart, 283 F.3d 992 (9th Cir. 2002), considered
                the question with which I am now presented--whether Arizona has
                established a postconviction capital counsel mechanism that satisfies
                chapter 154's requirements. The Ninth Circuit answered that question in
                the affirmative. See id. at 1008-18. However, the court concluded that
                chapter 154's expedited federal habeas review procedures would not
                apply in the case before it because Arizona had not appointed counsel
                for petitioner in conformity with the mechanism. See id. at 1018-19.
                 In 2006, Congress enacted amendments that brought chapter 154 into
                its current form. See Public Law 109-177, sec. 507, 120 Stat. 250, 250-
                51 (codified in part at 28 U.S.C. 2265). The amendments transferred
                responsibility for determining a State's satisfaction of chapter 154's
                requirements from the regional federal courts to the Attorney General,
                subject to de novo review by the D.C. Circuit Court of Appeals. See 28
                U.S.C. 2265. Under the revised scheme, the Attorney General, if
                requested by an appropriate state official, makes a determination and
                certification whether the State has established a postconviction
                capital counsel mechanism satisfying the chapter's requirements, with
                exclusive review of the certification by the D.C. Circuit. See 28
                U.S.C. 2265(a), (c).
                 The 2006 amendments reflected a legislative judgment that the
                Attorney General and the D.C. Circuit would best be able to make
                disinterested determinations regarding state counsel systems'
                satisfaction of chapter 154. The amendments also added a provision
                stating that there are no requirements for certification or application
                of chapter 154 other than those expressly stated in the chapter, 28
                U.S.C. 2265(a)(3), reflecting congressional concern that some courts
                had declined to apply chapter 154 on grounds going beyond those
                Congress had deemed to be warranted in its formulation of
                [[Page 20707]]
                chapter 154, see 152 Cong. Rec. 2441, 2445-46 (2006) (remarks of Sen.
                Kyl); 151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extension of
                remarks of Rep. Flake).
                 Chapter 154 directs the Attorney General to promulgate regulations
                to implement the certification procedure. 28 U.S.C. 2265(b). Attorney
                General Mukasey in 2008 issued an initial implementing rule for chapter
                154. See 73 FR 75327, 75327-39 (Dec. 11, 2008). The original rule
                tracked chapter 154's express requirements in light of 28 U.S.C.
                2265(a)(3)'s specification that ``[t]here are no requirements for
                certification or for application of this chapter other than those
                expressly stated in this chapter.'' Attorney General Holder rescinded
                the original rule and replaced it in 2013 with the current rule. See 28
                CFR 26.20-26.23; see also 78 FR 58160, 58160-84 (Sept. 23, 2013).
                 The regulations provide for the Attorney General to publish a
                notice in the Federal Register of a State's requests for chapter 154
                certification, to include solicitation of public comment on the
                request, and for the Attorney General to review the request and
                consider timely public comments received in response to the notice. 28
                CFR 26.23(b)-(c). The certification procedure was delayed for a number
                of years because a district court enjoined the regulations from taking
                effect. The Ninth Circuit later vacated the injunction, allowing the
                regulations to take effect. See Habeas Corpus Resource Ctr. v. U.S.
                Dep't of Justice, 816 F.3d 1241 (9th Cir. 2016), cert. denied, 137 S.
                Ct. 1338 (2017).
                 Arizona has requested that the Attorney General certify its capital
                counsel mechanism under chapter 154. The materials relating to
                Arizona's request are available at www.justice.gov/olp/pending-requests-final-decisions. The main occurrences in the certification
                process relating to Arizona have been as follows:
                 Arizona initially requested chapter 154 certification by letter
                from its Attorney General dated April 18, 2013. After the Ninth Circuit
                vacated the injunction against the certification process, the
                Department of Justice (``Department'') published a notice in the
                Federal Register inviting public comment on Arizona's request for
                certification and providing a 60-day comment period. 82 FR 53529 (Nov.
                16, 2017). Because of the passage of time since Arizona's original
                request, the Department sent a letter to the Arizona Attorney General
                dated November 16, 2017, advising of the publication, seeking
                confirmation that the materials previously submitted by the State were
                still current, and asking whether the State wished to supplement,
                modify, or update its request for certification. The Arizona Attorney
                General responded by letter of November 27, 2017, which provided
                updated information. The Department then published a second notice,
                which noted the updated request from Arizona and provided 60 days for
                public comment running from publication of the notice. 82 FR 61329
                (Dec. 27, 2017).
                 The Department received 140 comments from organizations and
                individuals in response to these solicitations. The most extensive
                comment was from the Federal Public Defender for the District of
                Arizona (AFPD), consisting of a 163-page document and voluminous
                exhibits. Other organizational commenters included the Arizona Capital
                Representation Project, the American Bar Association, the Innocence
                Project, the Arizona Justice Project, Federal Public Defenders, Arizona
                Voice for Crime Victims, the Phillips Black Project, the American Civil
                Liberties Union, and Arizona Attorneys for Criminal Justice. Many
                comments were also received from persons under sentence of death in
                Arizona or their lawyers.
                 On June 29, 2018, the Department sent a letter to the Arizona
                Attorney General requesting that the State provide additional
                information about its postconviction capital counsel mechanism, based
                on questions that had arisen during the Department's review of the
                State's request for certification and the public comments received. The
                Arizona Attorney General sent a responsive letter on October 16, 2018.
                The following month, the Department published a third notice to provide
                an opportunity for public comment with respect to the additional
                information the Arizona Attorney General had submitted. 83 FR 58786
                (Nov. 21, 2018). The Department received 17 comments during the 45-day
                comment period in response to this notice.
                 The ensuing section of this statement explains the basis for
                granting chapter 154 certification to Arizona. I discuss initially
                certain issues with cross-cutting significance and then analyze
                Arizona's capital counsel mechanism in relation to the elements
                required by chapter 154, including appointment, competency standards,
                compensation, and payment of reasonable litigation expenses for
                postconviction capital counsel. With respect to each element, I (i)
                identify the statutory basis of the requirement and the pertinent
                Arizona laws and policies, (ii) review judicial precedent and its
                continuing relevance (or not) given later changes in Arizona's
                mechanism and chapter 154, and (iii) explain the interpretation of
                chapter 154's requirements in the Department's regulations and
                Arizona's satisfaction of these requirements as construed in the
                regulations. The concluding section discusses additional matters,
                including objections to certification of Arizona's mechanism based on
                time limitation rules appearing in chapter 154, the validity of the
                implementing rule, and a request that I stay the certification.
                II. Assessment of Arizona's Mechanism Under Chapter 154
                A. Chapter 154--As Enacted in 1996 and As Amended in 22006
                Chapter 154 directs the Attorney General, if requested by an
                appropriate state official, to determine (i) 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, and (ii) whether the State provides standards of
                competency for the appointment of such counsel. 28 U.S.C. 2265(a).
                Additional specifications relating to the appointment of postconviction
                counsel appear in 28 U.S.C. 2261(c)-(d).
                 As noted above, I do not write on a clean slate in addressing
                Arizona's request for certification. Prior to 2006, the Attorney
                General was not involved in chapter 154 determinations, which were
                instead made by the federal courts entertaining federal habeas
                petitions filed by state prisoners under sentence of death. In
                particular, in 2002, the Ninth Circuit concluded that Arizona had
                established a capital counsel mechanism satisfying chapter 154's
                requirements. See Spears, 283 F.3d at 1007-19.
                 The analysis in Spears remains relevant because Arizona's capital
                counsel mechanism has remained largely the same since the Ninth
                Circuit's decision in that case, and the elements of an adequate state
                capital counsel mechanism as required by chapter 154 are largely the
                same as those required by chapter 154 at the time of that decision.
                Moreover, the case law under chapter 154, and particularly Spears,
                provided the background for the development of the Department's
                implementing regulations for chapter 154 that I now apply. The judicial
                precedent accordingly elucidates and supports many aspects of the
                Department's rule in its application to Arizona. See, e.g., 78 FR at
                58170, 58172, 58178, 58180.
                [[Page 20708]]
                 Discussion of Spears and other decisions was also prominent in the
                public comments on Arizona's request for certification. The comments
                argued that aspects of the judicial decisions that would support
                Arizona's certification should be considered no longer relevant or
                applicable, based on changes in Arizona's capital counsel mechanism
                over time or for other reasons, but they pointed to other aspects of
                the decisions as still pertinent and as implying that certification
                should be denied. I accordingly discuss below, in relation to each
                required element of an adequate state capital counsel mechanism under
                chapter 154, to what extent later changes affect the relevance of the
                Ninth Circuit's decision and other judicial interpretations of chapter
                154.
                 Before turning to the analysis of particular issues, I should
                address public comments on Arizona's request for certification which
                suggested that the Ninth Circuit's determination regarding Arizona's
                capital counsel mechanism should be dismissed as dictum. The basis for
                the objection is that the court in Spears found that Arizona's
                mechanism satisfies chapter 154's requirements, but it nevertheless
                denied the State the benefit of chapter 154's review procedures on the
                ground that the State had not fully complied with its rules for
                appointing counsel in that case. In Railroad Companies v. Schutte, 103
                U.S. 118 (1880), the Supreme Court explained the precedential weight of
                decisions of this nature:
                 It cannot be said that a case is not authority on one point
                because, although that point was properly presented and decided in
                the regular course of the consideration of the cause, something else
                was found in the end which disposed of the whole matter. Here the
                precise question was properly presented, fully argued, and
                elaborately considered in the opinion. The decision on this question
                was as much a part of the judgment of the court as was that on any
                other of the several matters on which the case as a whole depended .
                . . . If the decision is not conclusive on us, it is of high
                authority under the circumstances, and we are not inclined to
                disregard it. Id. at 143.
                 The Supreme Court's discussion in Schutte fits exactly the Ninth
                Circuit's decision in Spears. I similarly view the Ninth Circuit's
                determination that Arizona's mechanism satisfies chapter 154 as
                persuasive authority of substantial weight and I am ``not inclined to
                disregard it,'' id.
                 At the same time, I note a change in chapter 154 that makes my
                analysis different in an important respect from the preceding judicial
                consideration of these issues. Public comments opposing Arizona's
                request for certification have noted judicial decisions that held that
                a State could not receive the procedural benefits of chapter 154 in a
                particular case if the State did not comply with the requirements of
                its capital counsel mechanism in that case. See, e.g., Spears, 283 F.3d
                at 1018-19 (failure to appoint counsel within time required by state
                mechanism); Tucker v. Catoe, 221 F.3d 600, 604-05 (4th Cir. 2000)
                (failure to appoint counsel meeting state competency standards). Based
                on these decisions, the comments argued, I should deny Arizona's
                request for certification if, for example, the State's competency
                standards for appointment have not been consistently satisfied.
                 Judicial decisions of this nature, however, reflected the pre-2006
                version of chapter 154, under which requests to apply chapter 154's
                procedures were presented to federal habeas courts in particular cases.
                In that posture, courts could consider both the general question
                whether the State had established a mechanism satisfying chapter 154
                and, if so, whether counsel for the petitioner in the particular case
                had been appointed in compliance with that mechanism. Following the
                2006 amendments to chapter 154, however, only the general certification
                function is assigned to the Attorney General, see 28 U.S.C. 2265, and
                ascertaining whether counsel was appointed pursuant to the certified
                mechanism, as provided in section 2261(b)(2), is reserved to federal
                habeas courts. See 78 FR at 58162-63, 58165. Consequently, comments
                supposing that I must undertake case-specific review of the operation
                of Arizona's mechanism, and deny certification based on asserted
                deficiencies in practice, misapprehend the current division of labor
                under chapter 154 between the Attorney General and federal habeas
                courts.
                B. Appointment Requirement and Procedures
                 Subsection (c) of 28 U.S.C. 2261 provides that a qualifying capital
                counsel mechanism must offer postconviction counsel to all prisoners
                under capital sentence and provide for court orders appointing such
                counsel for indigent prisoners (absent waiver). Subsection (d) provides
                that postconviction counsel may not be the trial counsel unless the
                prisoner and trial counsel expressly request continued representation.
                The Department's implementing regulations for chapter 154, 28 CFR
                26.22(a), track these statutory requirements.
                 Arizona's capital counsel mechanism satisfies these requirements.
                Its statutes and rules provide for the appointment by court order of
                postconviction counsel for prisoners under sentence of death, unless
                waived, and provide that postconviction counsel cannot be the same as
                trial counsel unless the defendant and counsel expressly request
                continued representation. See Ariz. Rev. Stat. 13-4041(B)-(E) (``[T]he
                supreme court . . . or . . . the presiding judge . . . shall appoint
                counsel to represent the capital defendant in the state postconviction
                relief proceeding . . . . Counsel . . . shall . . . [n]ot previously
                have represented the capital defendant . . . in the trial court . . .
                unless the defendant and counsel expressly request continued
                representation . . . . [T]he capital defendant may . . . waive counsel
                . . . . [i]f . . . knowing and voluntary . . . .''); id. 13-4234(D)
                (``All indigent state prisoners under a capital sentence are entitled
                to the appointment of counsel to represent them in state postconviction
                proceedings. A competent indigent defendant may reject the offer of
                counsel with an understanding of its legal consequence.''); Ariz. R.
                Crim. P. 6.5(a) (``The court must appoint counsel by a written order .
                . . .''); id. 32.4(b) (``After the Supreme Court has affirmed a capital
                defendant's conviction and sentence, it must appoint counsel [for
                postconviction proceedings] . . . . If the presiding judge makes an
                appointment, the court must file a copy of the appointment order with
                the Supreme Court.'').
                 In Spears, the Ninth Circuit concluded that the relevant Arizona
                provisions, which did not differ significantly from their current
                versions with respect to the 28 U.S.C. 2261(c)-(d) requirements,
                satisfied this aspect of chapter 154. See 283 F.3d at 1009-12, 1017. I
                agree that this continues to be the case.
                C. Counsel Competency
                 Subsection (a) of 28 U.S.C. 2265 requires the Attorney General to
                determine whether a State has established a mechanism for the
                appointment of competent postconviction capital counsel and whether it
                provides standards of competency for the appointment of such counsel.
                 Analysis of this issue includes consideration of federal and state
                law on counsel competency standards, prior judicial assessment of
                Arizona's standards, and various issues raised in the public comments
                on Arizona's request for certification.
                [[Page 20709]]
                1. Counsel Competency Standards Under State and Federal Law
                 Arizona statutory provisions, in effect since 1996, regarding
                eligibility for appointment as postconviction capital counsel, have
                required that counsel (i) be a member in good standing of the state bar
                for at least five years immediately preceding the appointment, and (ii)
                have practiced in the area of state criminal appeals or postconviction
                proceedings for at least three years immediately preceding the
                appointment. See Ariz. Rev. Stat. 13-4041(C). The statute directs the
                Arizona Supreme Court to maintain a list of eligible attorneys and
                authorizes the Arizona Supreme Court to establish by rule more
                stringent standards of competency. See id. At the time of the decision
                in Spears, there was also a provision--since repealed--allowing the
                Arizona Supreme Court to appoint non-list counsel if no qualified
                counsel were available. See Spears, 283 F.3d at 1009-10.
                 The experience requirements of the Arizona statute are similar to
                counsel competency standards that Congress has adopted for federal
                court proceedings in capital cases, including both federal habeas
                corpus review of state capital cases and collateral proceedings under
                28 U.S.C. 2255 in federal capital cases. See 18 U.S.C. 3599. The
                federal standard for post-conviction counsel is not less than five
                years of admission to practice and three years of experience in
                handling felony appeals. Exceptions are allowed as provided in section
                3599(d), which permits the court, for good cause, to appoint other
                attorneys whose background, knowledge, or experience would otherwise
                enable them to properly represent capital defendants. Under the
                regulations implementing chapter 154 that I apply, and as a matter of
                common sense, it is significant that a State has adopted experience
                requirements similar to those that Congress has adopted for federal
                court proceedings, because it is implausible that Congress would have
                deemed inadequate under chapter 154 standards that it has deemed
                adequate for the corresponding federal proceedings. See 78 FR at 58170.
                 In addition, the Arizona Supreme Court has adopted a rule, Ariz. R.
                Crim. P. 6.8, that sets more stringent counsel competency standards
                than those appearing in the state statute that emulates the federal
                competency standards. At the time of the appointment considered in
                Spears, the rule required appointed counsel: (i) To have been a member
                in good standing of the Arizona Bar for at least five years immediately
                before appointment; (ii) to have practiced state criminal litigation
                for three years immediately before appointment; (iii) to have
                demonstrated the necessary proficiency and commitment which exemplify
                the quality of representation appropriate for capital cases; (iv)
                within three years immediately before appointment, to have been lead
                counsel in an appeal or postconviction proceeding in a capital case,
                and have prior experience as lead counsel in the appeal of at least
                three felony convictions and at least one postconviction proceeding
                with an evidentiary hearing or have been lead counsel in the appeal of
                at least six felony convictions, including at least two appeals from
                murder convictions, and lead counsel in at least two postconviction
                proceedings with evidentiary hearings; and (v) to have attended and
                successfully completed within one year of appointment at least 12 hours
                of relevant training or educational programs in the area of capital
                defense. See Spears, 283 F.3d at 1010-11. The rule further provided
                that postconviction capital counsel not fully satisfying these
                qualifications may be appointed in exceptional circumstances, but only
                if: (i) The Arizona Supreme Court consents, (ii) the attorney's
                experience, stature, and record establish that the attorney's ability
                significantly exceeds the full suite of qualifications, and (iii) the
                attorney associates with a lawyer who does meet the rule's
                qualifications. See Spears, 283 F.3d at 1010-11.
                 The Ninth Circuit concluded in Spears that these counsel competency
                standards were sufficient under chapter 154. See id. at 1013-15. The
                court noted that Congress did not envision any specific competency
                standards but, rather, ``intended the states to have substantial
                discretion to determine the substance of the competency standards.''
                Id. at 1013. The court dismissed an objection based on the rule's
                exception allowing the appointment of lawyers not meeting its specific
                criteria, noting that the exception required that such a lawyer
                significantly exceed those criteria and that the lawyer associated with
                one who did meet the rule's qualifications. See id. The court also
                dismissed an objection that the competency standards were insufficient
                because they allowed appointment of lawyers without experience
                defending a capital case, reasoning that ``[n]othing in 28 U.S.C.
                2261(b) or in logic requires that a lawyer must have capital experience
                to be competent.'' Id. Finally, the court dismissed an objection based
                on the statutory allowance of other counsel if qualified counsel were
                unavailable, because the Arizona Supreme Court had bound itself by the
                rule it adopted to appoint counsel meeting the rule's standards. See
                id. at 1012-15.
                 Arizona's postconviction capital counsel competency standards have
                changed in some particulars during the period considered in this
                certification. An amendment adopted in 2000--before the decision in
                Spears but after the appointment considered in that case--changed the
                training requirement to successful completion within one year before
                initial appointment of at least six hours of relevant training or
                education in the area of capital defense, and successful completion
                within one year before any later appointment of at least 12 hours of
                relevant training or education in the area of criminal defense. A
                requirement was later added that counsel be familiar with and guided by
                the American Bar Association guidelines for capital defense counsel.
                And an amendment adopted in 2011 modified the detailed litigation
                experience requirements in Rule 6.8, in places where the text had
                required postconviction litigation experience, to require instead trial
                or postconviction litigation experience.
                 As modified, Arizona's postconviction counsel competency standards
                have continued to exceed the standards of 18 U.S.C. 3599, which
                Congress has deemed adequate for postconviction counsel in federal
                court proceedings in capital cases. Nevertheless, public comments on
                Arizona's request for certification have questioned the current
                relevance of Spears with respect to Arizona's counsel competency
                standards, focusing mainly on the change in 2011 affecting the
                requirement of postconviction litigation experience. These comments
                were based on the 2011 amendment's addition of the following language
                in Rule 6.8, underlined below in the current text of Rule 6.8(d):
                 (d) Post-Conviction Counsel. To be eligible for appointment as
                post-conviction counsel, an attorney must meet the qualifications
                set forth in (a) and the attorney must:
                 (1) Within 3 years immediately before the appointment, have been
                lead counsel in a trial in which a death sentence was sought or in
                an appeal or post-conviction proceeding in a case in which a death
                sentence was imposed, and prior experience as lead counsel in the
                appeal of at least three felony convictions and a trial or post-
                conviction proceeding with an evidentiary hearing; or
                 (2) have been lead counsel in the appeal of at least 6 felony
                convictions, including two appeals from first- or second-degree
                murder convictions, and lead counsel in at least two
                [[Page 20710]]
                felony trials or post-conviction proceedings with evidentiary
                hearings.
                 Nothing in Spears suggests that the modifications of Rule 6.8 since
                1998--and in particular, the rule's allowance of trial or
                postconviction litigation experience--place the rule beyond Arizona's
                ``substantial discretion to determine the substance of the competency
                standards.'' Spears, 283 F.3d at 1007. Indeed, in an earlier case, the
                Ninth Circuit considered this very question and concluded that
                postconviction litigation experience is not a necessary element of
                adequate counsel competency standards under chapter 154. See Ashmus v.
                Calderon, 123 F.3d 1199, 1208 (9th Cir. 1997), rev'd on other grounds,
                523 U.S. 740 (1998). Responding to a challenge to California's
                standards because they did not require any familiarity with or
                experience in postconviction litigation--referred to as ``habeas
                corpus'' in California--the court observed that ``[m]any lawyers who
                could competently represent a condemned prisoner would not qualify
                under such a standard. We conclude a state's competency standards need
                not require previous experience in habeas corpus litigation.'' Ashmus,
                123 F.3d at 1208.
                2. Counsel Competency in the Department's Regulations
                 Postconviction litigation experience is also not an essential
                element of adequate counsel competency standards under the Department's
                interpretation of this aspect of chapter 154. The Department's
                regulations address counsel competency in 28 CFR 26.22(b), which says
                that a State's ``mechanism must provide for appointment of competent
                counsel as defined in State standards of competency for such
                appointments.'' To aid in the determination regarding this requirement,
                section 26.22(b)(1) provides two benchmark criteria and says that a
                State's standards of competency are presumptively adequate if they meet
                or exceed either of the benchmarks. Section 26.22(b)(2) further states
                that competency standards not satisfying the benchmark criteria will be
                deemed adequate only if they otherwise reasonably assure a level of
                proficiency appropriate for State postconviction litigation in capital
                cases.
                 In applying section 26.22(b)(2), the benchmark criteria continue to
                function as reference points in the evaluation. State competency
                standards that are likely to result in significantly lower levels of
                proficiency than the benchmarks risk being found inadequate under
                chapter 154, while state competency standards that are likely to result
                in similar or even higher levels of proficiency than the benchmarks
                weigh in favor of a finding of adequacy under chapter 154. See 78 FR at
                58172, 58179.
                 The first benchmark criterion, appearing in section 26.22(b)(1)(i),
                is appointment of counsel ``who have been admitted to the bar for at
                least five years and have at least three years of postconviction
                litigation experience.'' The basic standard is subject to the proviso
                that ``a court, for good cause, may appoint other counsel whose
                background, knowledge, or experience would otherwise enable them to
                properly represent the petitioner, with due consideration of the
                seriousness of the penalty and the unique and complex nature of the
                litigation.'' 28 CFR 26.22(b)(1)(i).
                 Arizona's standards of competency for appointment, appearing in
                Arizona Rule of Criminal Procedure 6.8(a)-(e), compare favorably to
                section 26.22(b)(1)(i). Section 26.22(b)(1)(i) could be satisfied, for
                example, by a lawyer admitted to the bar for five years who handled one
                or two postconviction proceedings in which the litigation continued
                over three years. It could be satisfied even if the postconviction
                proceedings concerned offenses dissimilar from capital murder offenses
                and even if the postconviction proceedings did not involve evidentiary
                hearings. By comparison, Arizona requires, in addition to five years of
                bar admission and three years of recent criminal litigation practice:
                (i) Demonstrated proficiency and commitment exemplifying the quality of
                representation appropriate for capital cases; (ii) relevant training or
                education in the area of capital defense and other criminal defense;
                (iii) familiarity with the American Bar Association guidelines for
                capital defense counsel; and (iv) recent experience as lead counsel in
                capital litigation with prior experience as lead counsel in at least
                three felony appeals and a trial or postconviction proceeding with an
                evidentiary hearing or experience as lead counsel in at least six
                felony appeals, including two murder conviction appeals, and experience
                as lead counsel in at least two felony trials or postconviction
                proceedings with evidentiary hearings. See Ariz. R. Crim. P. 6.8(a),
                (d).
                 The nature and extent of Arizona's standards of competency justify
                the conclusion that they are ``likely to result in even higher levels
                of proficiency,'' 78 FR at 58172, than the benchmark set forth in 28
                CFR 26.22(b)(1)(i). The same was true of earlier iterations of
                Arizona's counsel competency standards, which have evolved in some
                respects as discussed above. It follows that Arizona's capital counsel
                mechanism provides (and has provided) adequate standards of competency
                for appointments. See 28 CFR 26.22(b)(2); see also 78 FR at 558172.
                A number of public comments argued that Arizona's standards are
                inadequate because, following the 2011 amendments to Rule 6.8, they do
                not require postconviction litigation experience. These comments are of
                a piece with those, discussed above, that attempted to distinguish
                Spears on this ground. In relation to section 26.22(b)(2), the
                objection assumes that postconviction litigation experience is
                critical, if not essential, under the Department's rule.
                 The comments misunderstand the regulation. As explained above, in
                applying section 26.22(b)(2), the benchmark criteria of section
                26.22(b)(1) serve as reference points. The ``section 26.22(b)(1)(i)
                [benchmark] is based on the qualification standards Congress has
                adopted in 18 U.S.C. 3599 for appointment of counsel in Federal court
                proceedings in capital cases'' and ``[t]he formulation of the benchmark
                . . . does not take issue . . . with Congress's judgments regarding
                counsel competency standards that are likely to be adequate.'' 78 FR at
                58169. The federal statutory competency standards are themselves
                appropriate reference points in assessing the adequacy of corresponding
                state standards, because it is implausible that Congress would have
                deemed inadequate for state postconviction proceedings standards
                similar to those it has deemed adequate for federal postconviction
                proceedings. See 78 FR at 58169-70. Significantly, 18 U.S.C. 3599 does
                not require prior postconviction litigation experience. Rather, it
                deems sufficient having prior experience in the litigation of felony
                appeals. See id. As detailed above, Arizona's standards throughout the
                timeframe of this certification have required substantial experience
                litigating felony appeals.
                 Moreover, Arizona's competency standards do not deem appellate
                experience alone to be sufficient but rather also require
                postconviction litigation experience or trial experience. Where that
                element of the standard is satisfied by trial experience rather than
                postconviction experience, it remains relevant to postconviction
                litigation, equipping postconviction counsel to assess the adequacy of
                trial counsel's performance and enhancing his ability to raise in
                postconviction proceedings claims of ineffectiveness of trial counsel
                and other claims relating to the trial
                [[Page 20711]]
                proceedings. And, as discussed above, Arizona's standards have
                consistently involved other requirements, going beyond both the section
                22.62(b)(1)(i) benchmark and 18 U.S.C. 3599, which are relevant to
                counsel's ability to provide competent representation in capital
                postconviction proceedings.
                3. Specific Criticisms
                 Some public comments objected that Arizona's qualification
                standards are inadequate because Arizona Rule of Criminal Procedure
                6.8(e) (formerly 6.8(d)) allows the appointment of counsel who do not
                meet some of the qualification standards, an allowance that the
                comments say has been relied on in nearly 25 percent of capital cases
                in Arizona. However, the proviso in Rule 6.8(e) is similar to language
                in 28 CFR 26.22(b)(1)(i) and 18 U.S.C. 3599(d) that allows the court,
                for good cause, to appoint counsel not satisfying the basic standard if
                the attorney's background, knowledge, or experience would otherwise
                enable him to properly represent the defendant. Indeed, the Rule 6.8(e)
                proviso is narrower in some respects than the proviso in the federal
                provisions in that it requires that: (i) The Arizona Supreme Court
                consent to the appointment; (ii) the attorney satisfy certain of Rule
                6.8's requirements, including successful completion of relevant
                training or educational programs; (iii) the attorney's experience,
                stature, and record establish that the attorney's ability significantly
                exceeds the full set of qualification standards; and (iv) the attorney
                associate with an attorney appointed by the court who fully meets the
                standards of Rule 6.8. Ariz. R. Crim. P. 6.8(e)(1)-(4). Put simply,
                Rule 6.8(e) requires more to ensure that appointed counsel will provide
                competent representation than do its federal counterparts, and this has
                been true throughout the timeframe of this certification.
                 Some comments argued that Arizona's counsel competency standards
                are insufficient because they lack an appropriate appointing authority,
                adequate training requirements, adequate qualitative evaluation, an
                adequate system for monitoring the performance of counsel following
                appointment, and adequate means to terminate the eligibility of counsel
                whose performance is inadequate or who engages in misconduct. States
                can qualify for chapter 154 certification by establishing capital
                counsel mechanisms that incorporate elements addressing these matters.
                See 78 FR at 58170-71. But neither the terms of chapter 154 and the
                implementing regulations nor judicial precedent support the notion that
                these things are required. Congress intended that States have
                substantial discretion in defining competency standards under chapter
                154. See Spears, 283 F.3d at 1012-13; 78 FR at 58170, 58172. Arizona's
                competency standards are well within the bounds of its discretion, as
                measured against 18 U.S.C. 3599(d), 28 CFR 26.22(b), and the judgment
                in Spears.
                 Finally, some public comments argued that Arizona's competency
                standards should be deemed inadequate in practice, alleging that many
                appointed postconviction counsel in Arizona do not perform competently,
                that some had not been considered proficient by a Maricopa County
                selection committee for trial and appellate capital counsel, and that
                the qualification requirements for appointment are not consistently
                enforced. Comments of this nature also pointed to language in the rule
                preamble that observed that a State may fail to establish in practice a
                necessary element of its capital counsel mechanism and to judicial
                decisions (preceding the transfer of the certification function to the
                Attorney General) that concluded that States must comply with their
                capital counsel mechanisms to have the benefit of the chapter 154
                review procedures.
                 Arizona disagrees that there are systemic problems relating to the
                competency of the State's appointed postconviction capital counsel.
                Arizona asserts that the critical comments largely focus on 12
                attorneys out of 86, none of whom have been disciplined, removed from
                cases, or judicially determined to be incompetent based on their
                alleged deficiencies. Arizona also asserts that the Arizona Supreme
                Court need not agree with or defer to a committee of defense lawyers in
                Maricopa County and can instead reasonably appoint postconviction
                counsel who satisfy the State's competency standards in its own
                judgment. Furthermore, regarding the comments' presentation of
                criticisms by counsel involved in later stages of capital case
                litigation, Arizona asserts that ``[r]arely . . . is there a capital
                case in which habeas counsel does not raise new claims or fault the
                work of earlier lawyers as flawed and ineffective'' but ``the strategy
                has never succeeded'' with respect to ``any of the 12 attorneys at
                issue.'' Letter from Office of the Arizona Attorney General, Oct. 16,
                2018, at 8-10.
                 The critical comments on this issue misunderstand the allocation of
                responsibilities under the current version of chapter 154 and the
                Attorney General's function in making certification decisions.
                 Regarding a State's compliance with its own capital mechanism, the
                current statutory scheme does not call for or allow case-specific
                oversight by the Attorney General. As discussed above, following the
                amendments that Congress enacted in 2006, chapter 154 includes only two
                preconditions to its applicability in a particular case: ``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,'' 28 U.S.C. 2261(b)(1); and ``counsel was
                appointed pursuant to that mechanism, petitioner validly waived
                counsel, petitioner retained counsel, or petitioner was found not to be
                indigent,'' id. 2261(b)(2). Only the general certification function
                referenced in section 2261(b)(1), and set forth fully in section 2265,
                is assigned to ``the Attorney General of the United States.''
                Ascertaining whether counsel was appointed pursuant to the certified
                mechanism, as provided in section 2261(b)(2), is reserved to federal
                habeas courts, ``which can address individual irregularities and decide
                whether the Federal habeas corpus review procedures of chapter 154 will
                apply in particular cases.'' 78 FR at 58162.
                 In this regard, the current law differs from chapter 154 as it was
                prior to the 2006 amendments, when requests to apply the chapter 154
                federal habeas review procedures were presented to federal habeas
                courts in the context of particular cases they were reviewing. Courts
                in that posture considered whether the State had established a
                mechanism satisfying chapter 154, and if so, whether counsel for the
                petitioner in the particular case before the court had been appointed
                in compliance with that mechanism. Consequently, if counsel had not
                been appointed on collateral review in a particular case, or if the
                attorney provided did not satisfy the State's competency standards for
                such appointments, the courts could find chapter 154 inapplicable on
                that basis, regardless of whether the State had established a capital
                counsel mechanism that otherwise satisfied the requirements of chapter
                154. See 78 FR at 58162-63, 58165; see also, e.g., Tucker, 221 F.3d at
                604-05 (``We accordingly conclude that a State must not only enact a
                `mechanism' and standards for postconviction review counsel, but those
                mechanisms and standards must in fact be complied with before the State
                may invoke the time limitations of 28 U.S.C. 2263.'').
                 In contrast, in entertaining a State's request for chapter 154
                certification
                [[Page 20712]]
                under the current law, the Attorney General has no individual case
                before him and is not responsible for determining whether a State has
                complied with its mechanism in any particular case. Rather, as
                discussed above, 28 U.S.C. 2261(b)(1) assigns to the Attorney General
                the general certification function under chapter 154, which makes him
                responsible for determining whether an appointment mechanism has been
                established by the State and whether the State provides standards of
                competency. If the state mechanism is certified, appointment of counsel
                pursuant to the certified mechanism (absent waiver or retention of
                counsel or a finding of non-indigence) continues to be a further
                condition for the applicability of chapter 154. Whether that has
                occurred in any individual case is, under 28 U.S.C. 2261(b)(2), a
                matter to be decided by the federal habeas court to which the case is
                presented, not the Attorney General. See 78 FR at 58162-63, 58165.
                 Likewise, the contention that the Attorney General should certify a
                State's mechanism only if he is satisfied with the actual performance
                of postconviction counsel following appointment misconceives the
                Attorney General's role under the current law. Chapter 154 provides
                that the Attorney General ``shall determine'' whether a State ``has
                established a mechanism for the appointment . . . of competent
                counsel'' in state capital postconviction proceedings, and whether the
                State ``provides standards of competency for the appointment of
                counsel'' in such proceedings. 28 U.S.C. 2265(a). The statute does not
                provide that the Attorney General is to inquire into counsel's
                performance following appointment in all or even some cases. Instead,
                it frames its requirements regarding counsel competency as matters
                relating to appointment, contemplating an inquiry into whether a State
                has standards determining eligibility for appointment. See 78 FR at
                58162-63, 58165. This understanding is supported by the Powell
                Committee Report, the original reform proposal from which chapter 154
                derives. The report explained that federal review would examine whether
                a State's mechanism for appointing capital postconviction counsel
                comports with the statutory requirements ``as opposed to [examining]
                the competency of particular counsel.'' 135 Cong. Rec. at 24696. It
                further explained that, in contrast to the focus on ``the performance
                of a capital defendant's trial and appellate counsel,'' ``[t]he
                effectiveness of State and Federal postconviction counsel is a matter
                that can and must be dealt with in the appointment process.'' Id.; see
                78 FR at 58162-63, 58165.
                 Regarding the ``establishment'' of a mechanism meeting chapter
                154's requirements, 28 U.S.C. 2265(a), the rule's preamble posited that
                the Attorney General might need to address situations involving ``a
                wholesale failure to implement one or more material elements of a
                mechanism described in a State's certification submission, such as when
                a State's submission relying on section 26.22(b)(1)(ii) in the rule
                points to a statute that authorizes a State agency to create and fund a
                statewide attorney monitoring program, but the agency never actually
                expends any funds, or expends funds to provide for monitoring of
                attorneys in only a few of its cities.'' 78 FR at 58162-63. (The
                section 26.22(b)(1)(ii) benchmark referenced in the example involves a
                state post-appointment monitoring system, see 34 U.S.C.
                60301(e)(2)(E)(i).) One could imagine similar situations in connection
                with other chapter 154 requirements--for example, if a state statute
                authorizes appointment and compensation of postconviction capital
                counsel for indigent prisoners, but the state legislature never
                appropriates any funds that can lawfully be used for that purpose.
                 As the preamble discussion makes clear, however, ``a wholesale
                failure'' to implement a necessary element under chapter 154 is an
                extreme situation, and no such situation exists or has existed with
                respect to Arizona's appointment of postconviction counsel. ``Other
                than in these situations, should they arise, questions of compliance by
                a State with the standards of its capital counsel mechanism will be a
                matter for the Federal habeas courts.'' 78 FR at 58163.
                4. The Arizona Capital Postconviction Public Defender Office
                 Some comments suggested that Arizona's mechanism does not satisfy
                chapter 154's counsel competency requirements because Arizona had,
                between 2007 and 2011, a public postconviction capital counsel agency--
                the Arizona Capital Postconviction Public Defender Office--and counsel
                employed by that agency did not have to satisfy the standards of
                competency for appointment under Rule 6.8. See Letter from Martin
                Lieberman, Dec. 27, 2018; Letter from AFPD, Feb. 22, 2018, at 38-41.
                This agency, which the commenters describe as inadequately funded and
                ultimately unsuccessful, was created by legislation enacted in 2006
                that provided for the agency's termination on July 1, 2011. 2006 Ariz.
                Legis. Serv. Ch. 369, sec. 3, 4, 6. During the limited period of its
                existence, the agency did not supplant Arizona's general capital
                counsel mechanism, which continued to provide counsel for
                postconviction representation outside of the few cases handled by the
                agency. The comments relating to the agency do not go to the question
                whether Arizona had a capital counsel mechanism adequate under chapter
                154 before the agency's establishment or after its termination, but at
                most to whether there was an intermediate period in 2007 to 2011 in
                which it did not.
                 With respect to that period, the comments amount to a claim that
                agency counsel were not appointed pursuant to the mechanism I now
                certify in the few cases the agency handled, because the agency counsel
                were not required to satisfy state standards of competency. Cf. Tucker,
                221 F.3d at 604. Under the current formulation of chapter 154, such a
                claim could be presented to the federal habeas court under 28 U.S.C.
                2261(b)(2) in the cases in which the agency provided postconviction
                representation and, if found to have merit, it could provide a basis
                for finding chapter 154's review procedures inapplicable in those
                cases. It does not have implications outside of those cases or affect
                my determination that Arizona has had a mechanism for appointment of
                postconviction counsel satisfying chapter 154's requirements
                continuously since May 19, 1998.
                 I also conclude that Arizona has had a capital counsel mechanism
                adequate under chapter 154 continuously since May 19, 1998, because
                Arizona's capital counsel mechanism in the period between 2007 and 2011
                comprised its general mechanism established in 1998 together with the
                provision for representation by the public agency. Arizona law required
                that the agency's Director meet or exceed the Rule 6.8 competency
                standards. 2006 Ariz. Legis. Serv. Ch. 369, sec. 7. The Director in
                turn hired experienced attorneys who operated under his supervision.
                See Letter from Martin Lieberman, Apr. 5, 2009, at 3. With respect to
                the agency's staff counsel, hiring and employment by a dedicated office
                whose function is capital postconviction representation, under a
                Director having those qualifications, is a reasonable means of ensuring
                proficiency appropriate for such representation. I therefore find that
                this aspect of Arizona's mechanism satisfies section 26.22(b)(2).
                 The comments' criticisms relating to the public agency's funding do
                not impugn this conclusion. Nor do they show a failure by Arizona to
                satisfy chapter 154's other requirements,
                [[Page 20713]]
                relating to compensation and payment of reasonable litigation expenses,
                which are fully discussed in the ensuing portions of this notice.
                Rather, the information in the comments indicates that the agency was
                generally able to limit its caseload to a level compatible with its
                resources. Its attorneys were compensated by salary, which is allowed
                under chapter 154 for public defender personnel. See Spears, 283 F.3d
                at 1010 (requirement regarding hourly rate of compensation inapplicable
                to counsel in publicly funded offices); 78 FR at 58180 (such counsel
                may be compensated by salary). Litigation expenses were paid from the
                agency's budget with the possibility of requesting additional funds
                from the court. The comments state that a budgetary shortfall in 2009
                resulted in delay in the processing of two cases. See Decl. of Martin
                Lieberman, Dec. 26, 2017, at 2-4; Letter from Martin Lieberman, Apr. 5,
                2009, at 3-4. But chapter 154 does not condition certification on all
                cases being processed without delay.
                5. International Issues
                 Beyond the general comments regarding Arizona's counsel competency
                standards, the Government of Mexico submitted a comment asserting that
                the Attorney General should deny certification because Arizona has no
                provision ensuring that foreign national defendants receive competent
                representation. See Letter from Amb. Jos[eacute] Antonio Zabalgoitia,
                Jan. 5, 2017. The comment states that attorneys representing foreign
                nationals need expertise specific to such clients, including expertise
                regarding international law. See id. at 2-3. The comment further
                asserts that foreign nationals present other special needs affecting
                the requirements for competent representation, including defense teams
                that can communicate in the defendant's native language, culturally
                competent experts who can understand the defendant's cultural
                background and work with him and his family in appropriate ways, and
                foreign travel to investigate the defendant's circumstances and life in
                his home country. See id.
                 The comment does not provide a basis for denying certification.
                Prisoners under sentence of death could be divided into many
                subcategories, each of which might benefit from representation by
                lawyers with special expertise. But chapter 154 does not require that a
                State define special competency standards for lawyers with respect to
                each such class. Instead, it provides that a State must provide
                standards of competency for appointment. See 28 U.S.C. 2265(a)(1)(C).
                 The comment provides no persuasive reason to believe that lawyers
                satisfying Arizona's standards for appointment will be unable to handle
                competently any legal issues involved in representing foreign clients.
                The counsel competency standards Congress has enacted for federal court
                proceedings in capital cases, 18 U.S.C. 3599, impose no special
                requirements for cases involving foreign defendants. It is implausible
                that Congress intended to impose such requirements with respect to
                state postconviction proceedings under chapter 154. Likewise, the
                implementing rule for chapter 154 does not require special counsel
                competency standards for cases involving foreign defendants. Neither of
                the section 26.22(b)(1) benchmark criteria require special competency
                standards for counsel representing foreign clients, and there is no
                basis for reading such a requirement into the section 26.22(b)(2)
                authorization of standards that otherwise reasonably assure a level of
                proficiency appropriate for state capital postconviction litigation.
                 Other matters raised in this comment--relating to language skills,
                culturally competent experts, and foreign travel--go to the question
                whether Arizona provides for payment of reasonable litigation expenses.
                I answer that question in the affirmative for reasons discussed in Part
                II.E of this notice.
                D. Compensation of Counsel
                 Chapter 154 requires the Attorney General to determine whether a
                state has established a mechanism for the compensation of appointed
                postconviction capital counsel. 28 U.S.C. 2265(a). Throughout the
                period considered in this certification, Arizona Revised Statutes
                section 13-4041 has provided that ``[u]nless counsel is employed by a
                publicly funded office, counsel appointed to represent a capital
                defendant in state postconviction relief proceedings shall be paid an
                hourly rate of not to exceed one hundred dollars per hour.'' Ariz. Rev.
                Stat. 13-4041(F). The statute has also consistently required the court
                (or the court's designee) to approve reasonable fees and costs, and has
                provided for recourse through a special action with the Arizona Supreme
                Court where the attorney believes that the court has set an
                unreasonably low hourly rate or the court found that the hours the
                attorney spent were unreasonable. See Ariz. Rev. Stat. 13-4041(G). The
                statute formerly required that counsel establish good cause to receive
                compensation for more than 200 hours of work--amounting to a
                presumptive $20,000 cap on compensation at the maximum hourly rate of
                $100--but legislation enacted in 2013 eliminated this limitation. See
                2013 Ariz. Legis. Serv. Ch. 94.
                1. Judicial Assessment of Compensation Under Chapter 154
                 In Spears, the Ninth Circuit ``conclude[d] that Arizona's
                compensation mechanism complied with Chapter 154.'' 283 F.3d at 1015.
                The court rejected petitioner's argument that the then-existing 200-
                hour limit was ``unduly burdensome to appointed counsel,'' reasoning
                that ``to receive compensation for hours beyond the threshold, the
                lawyer need[ ] only to establish that he or she worked more than 200
                hours on the case and that the time expended was reasonable.'' Id. The
                court observed that ``[n]othing in Chapter 154 suggests that the
                mechanism to ensure compensation must be a blank check. The statute
                simply requires that the appointment mechanism reasonably compensate
                counsel.'' Id. Consequently, consistent with chapter 154, ``a state can
                require an appointed lawyer to account for the reasonableness of the
                number of hours worked before it compensates that lawyer.'' Id.
                 Considering the State's submissions and the public comments
                thereon, there appears to be agreement that the Arizona Supreme Court
                consistently orders compensation at the maximum hourly rate of $100.
                The comments noted, however, that the $100 hourly rate has not been
                changed since 1998, during which time its real value has been eroded by
                inflation. The comments pointed to recommendations that the hourly rate
                be increased, with $125 sometimes mentioned as a more appropriate
                figure.
                 As an initial matter, the reduction of the value of $100 by
                inflation during the period of the certification does not imply that it
                is now an inadequate maximum hourly rate. A State may establish a rate
                of compensation high enough that it is adequate at the outset and
                continues to be adequate even after inflation's erosion of its real
                value over time. The hourly rate established by Arizona, in particular,
                continues to be adequate under chapter 154.
                 Simple computation allows a general assessment of the remuneration
                postconviction capital counsel may be afforded in Arizona. Assuming
                that a regular work week is 40 hours, and that a regular work year
                consists of about 50 weeks, the number of hours in a full year of work
                is 2000. Applying
                [[Page 20714]]
                Arizona's maximum hourly rate of $100, postconviction counsel would
                receive $4,000 for a week of full-time work on a capital case, and
                would receive $200,000 for a year's work.
                 Judicial precedent finding state compensation inadequate under
                chapter 154 has involved much more restrictive compensation provisions
                than Arizona's. In Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000), the
                Fourth Circuit concluded that Maryland's scheme failed to satisfy
                chapter 154. Id. at 287. Maryland at the time compensated
                postconviction capital counsel $30 per hour for out-of-court time and
                $35 per hour for in-court time, subject to an overall cap of $12,500.
                Id. at 285. Examining attorney overhead costs and the effects of the
                hourly rates and fee cap, the court concluded that accepting
                postconviction capital cases resulted in a net loss to attorneys. Id.
                The court stated that ``[a] compensation system that results in
                substantial losses to the appointed attorney or his firm simply cannot
                be deemed adequate.'' Id. at 285-86.
                 The compensation scheme at issue in Baker bears no resemblance to
                Arizona's system, which, as discussed above, may compensate
                postconviction capital counsel $200,000 for a year's work (reckoned as
                2,000 hours). Even assuming overhead costs of 40% of revenue for
                private counsel, as a commenter suggested, the net authorized income
                for a year of postconviction work in Arizona would be $120,000 (=
                $200,000 - 40% x $200,000). This is far from the concern reflected in
                Baker regarding attorneys having to operate at a substantial loss. See
                220 F.3d at 285-86; see also Mata v. Johnson, 99 F.3d 1261, 1266 (5th
                Cir. 1996) (finding that Texas's mechanism, which capped compensation
                at $7,500 and expenses at $2,500, satisfied chapter 154 for those
                elements), vacated in part on other grounds, 105 F.3d 209 (5th Cir.
                1997).
                 Arizona's submissions provided extensive information about how
                appointed counsel are compensated in practice. Arizona's 2017
                application letter explained that ``[c]ounsel employed by publicly-
                funded offices are compensated by salary'' and that ``[a]ppointed
                private counsel are compensated at an hourly rate of up to $100 per
                hour,'' as provided by statute. Letter from Office of the Arizona
                Attorney General, Nov. 27, 2017, at 2. The application further reported
                that ``Arizona regularly spends well over $200,000 in attorney fees and
                litigation costs in capital post-conviction cases, and has spent over
                $500,000 in more than one case.'' Id. In 2018, Arizona provided
                additional information and documentation, including identifying a
                number of cases in which the State paid over $500,000 in attorney fees
                and litigation costs. Letter from Office of the Arizona Attorney
                General, Oct. 16, 2018. Arizona reported that the average compensation
                of postconviction capital counsel in Maricopa County exceeds $165,000,
                that the average compensation in Pima County exceeds $110,000, and that
                even smaller counties spend significantly more than $20,000 per case.
                 Public comments on Arizona's submissions state that Arizona's
                examples and data are variously irrelevant, ambiguous,
                unrepresentative, misleading, incomplete, and inaccurate; that the
                average and high-end case figures mask or highlight variations among
                counties and cases, which may involve relatively low levels of
                compensation; and that use of the median instead of the mean yields
                lower representative figures.
                 I do not find it necessary to resolve the conflicting factual
                claims because I find Arizona's compensation mechanism to be adequate
                under chapter 154, as the Ninth Circuit concluded in Spears, on
                uncontroverted grounds discussed above, and for additional reasons I
                discuss below in connection with the Department's regulations.
                2. Counsel Compensation in the Department's Regulations
                 Turning to the implementing regulations for chapter 154, 28 CFR
                26.22(c) provides that a State's ``mechanism must provide for
                compensation of appointed counsel.'' The regulation provides four
                benchmark criteria and says that a State's provision for compensation
                is presumptively adequate if it is comparable to or exceeds any of the
                benchmarks. The benchmarks are: (i) Compensation of appointed capital
                federal habeas counsel; (ii) compensation of retained state
                postconviction capital counsel meeting state standards of competency;
                (iii) compensation of appointed state capital trial or appellate
                counsel; and (iv) compensation of state attorneys in state capital
                postconviction proceedings, taking account of relative overhead costs.
                See 28 CFR 26.22(c)(1).
                 The rule further states in section 26.22(c)(2) that provisions for
                compensation not satisfying the benchmark criteria will be deemed
                adequate only if the state mechanism is otherwise reasonably designed
                to ensure the availability for appointment of counsel who meet state
                standards of competency sufficient under section 26.22(b). See 78 FR at
                58172-73, 58179-80 (further explaining the regulatory provisions). The
                rule preamble explains that section 26.22(c)(2) recognizes that
                compensation provisions ``have been deemed adequate for purposes of
                chapter 154 . . . independent of any comparison to the benchmarks in
                paragraph (c)(1),'' citing the Spears decision and Arizona's hourly
                rate of up to $100 by way of illustration. 78 FR at 58180.
                 Arizona's 2017 letter says that postconviction capital
                representation is provided by two classes of lawyers who are
                compensated differently. See Letter from Office of the Arizona Attorney
                General, Nov. 27, 2017, at 2. This is consistent with the rule. See 78
                FR at 58180 (``A State may . . . provide for compensation of different
                counsel or classes of counsel in conformity with different
                standards.'').
                 One of the classes is ``[c]ounsel employed by publicly-funded
                offices'' who ``are compensated by salary.'' Letter from Office of the
                Arizona Attorney General, Nov. 27, 2017, at 2. This is adequate under
                section 26.22(c)(2); such personnel do not require financial incentives
                beyond their salaries to provide representation in capital
                postconviction proceedings. See 78 FR at 58180 (noting, in relation to
                section 26.22(c)(2), that ``a State may secure representation for
                indigent capital petitioners in postconviction proceedings by means not
                dependent on any special financial incentive for accepting
                appointments, such as by providing sufficient salaried public defender
                personnel to competently carry out such assignments as part of their
                duties'').
                 With respect to private counsel, the information I have received
                from the State and public comments is insufficient to enable me to
                determine whether Arizona's mechanism for compensation has satisfied
                the benchmarks of section 26.22(c)(1) because it does not include
                comparative information for the benchmarks' reference points--such as
                compensation of trial and appellate counsel, and compensation of
                attorneys representing the State in postconviction proceedings--for all
                parts of the State throughout the period of the certification. I
                accordingly consider whether the mechanism is reasonably designed to
                ensure the availability for appointment of counsel meeting the State's
                standards of competency for appointment, as provided in section
                26.22(c)(2).
                 Some comments maintained that Arizona's provision for compensation
                is inadequate because between 1998 and
                [[Page 20715]]
                2013 there was a presumptive limit of 200 compensable hours, implying a
                $20,000 limit on total compensation at the maximum $100 hourly rate.
                That presumptive limit is consistent with the rule, however, because
                there were means for authorizing compensation beyond the presumptive
                maximum. Indeed, the rule preamble cited the Ninth Circuit's approval
                in Spears of Arizona's presumptive 200-hour limit because, as the Ninth
                Circuit observed, compensation was available for work beyond that limit
                if reasonable. 78 FR at 58180.
                 Variations in compensation among cases and counties, which were
                noted in the State's submissions and the public comments, do not call
                into question the adequacy of Arizona's compensation mechanism under
                the rule's standard. It would be unreasonable to expect attorneys'
                compensation to be similar in all cases, because different cases
                require different amounts of work, depending on their particular issues
                and characteristics. Aggregate and average compensation may vary in
                different geographic areas because of differences among counties in the
                nature and number of capital cases or other factors. Whatever the
                reasons for such variations, Arizona's mechanism has authorized and
                does authorize, on a statewide basis, compensation of counsel at a rate
                of up to $100 an hour, with no inflexible limit on the number of hours
                that can be compensated. Chapter 154 does not require greater statewide
                uniformity in compensation and there are no requirements for
                certification beyond those that chapter 154 states. See 28 U.S.C.
                2265(a)(3).
                 Finally, some commenters argued that section 26.22(c)(2) is not
                satisfied on the ground that Arizona's $100 hourly rate has been
                inadequate to attract counsel who perform adequately in practice. As
                discussed above, the State disputes the commenters' claims of systemic
                inadequacies in the performance of counsel, and reviewing counsel's
                performance in particular cases is not among the Attorney General's
                functions under chapter 154. Moreover, the criterion under section
                26.22(c)(2) is whether the State's provision for compensation is
                ``reasonably designed to ensure the availability for appointment of
                counsel who meet State standards of competency sufficient under
                [section 26.22(b)],'' which refers to the standards for appointment
                under the State's capital counsel mechanism. Arizona has been able to
                recruit attorneys who were found by the appointing authority to satisfy
                these standards. Commenters maintain that such counsel have been
                appointed only after excessive delays, but timeliness of appointment is
                a different issue that I discuss separately below.
                 Accordingly, I find that Arizona's provision for compensation of
                appointed postconviction capital counsel satisfies the requirements of
                chapter 154.
                E. Payment of Reasonable Litigation Expenses
                 Chapter 154 requires the Attorney General to determine whether a
                State has established a mechanism for payment of reasonable litigation
                expenses of appointed postconviction capital counsel. 28 U.S.C.
                2265(a). Arizona's mechanism provides for the payment of reasonable
                litigation expenses in Arizona Revised Statutes sections 13-4041(G),
                (I), and 13-4013(B).
                 In Spears, the Ninth Circuit found that Arizona's provisions for
                payment of reasonable litigation expenses--which have not changed in
                the intervening years in any material respect-- were adequate under
                chapter 154. See 283 F.3d at 1016. The Ninth Circuit reasoned that
                chapter 154 requires ``only that the state mechanism provide for the
                payment of reasonable litigation expenses'' and ``assumes that a state
                can assess reasonableness as part of its process.'' Id. Nothing has
                transpired since Spears that calls this conclusion into question,
                notwithstanding comments claiming that expense payments in Arizona are
                too low and that the level of such payments varies among cases and in
                different parts of the State. Chapter 154 has not at any time required
                payment of any particular quantum of expenses and it has not provided
                that a State lacks a qualifying mechanism if different amounts of
                expenses are found to be reasonable in different areas or cases.
                Differences among cases may result from different needs for
                investigation, expert witnesses, and other resources, depending on the
                characteristics of the individual case. Differences among counties may
                result from differences in the nature and number of capital cases,
                differences in cost-of-living and wages, and other factors. Whatever
                the reasons for such variations, Arizona Revised Statutes sections 13-
                4041(G), (I), and 13-4013(B) provide for payment of reasonable
                litigation expenses on a statewide basis, which satisfies chapter 154's
                requirement. Spears did not go beyond chapter 154 to require more
                definite criteria or greater statewide uniformity in the payment of
                litigation expenses, and adding to chapter 154's express requirements
                is now barred. See 28 U.S.C. 2265(a)(3).
                 A frequent point of criticism in the public comments was that
                Arizona's provisions regarding payment of litigation expenses include
                both mandatory and permissive language. Compare Ariz. Rev. Stat. 13-
                4041(G) (court ``shall'' review and approve all reasonable fees and
                costs) with id. 13-4041(I) (court ``may'' authorize additional monies
                to pay for reasonably necessary investigative and expert services). The
                same variation in language existed when the Ninth Circuit decided
                Spears, however, and the court understood these provisions to
                ``requir[e] the payment of reasonable costs, as well as reasonable fees
                to investigators and experts, whenever the court deemed them reasonably
                necessary.'' 283 F.3d at 1016. Chapter 154 requires a mechanism for
                payment of reasonable litigation expenses but does not say that all of
                a State's provisions relating to the matter must use facially mandatory
                language. Notably, in the same act that added chapter 154 to title 28
                of the United States Code, Congress changed the wording of the
                provision for payment of reasonably necessary litigation expenses in
                federal capital cases, and in federal habeas corpus review of state
                capital cases, from ``shall'' to ``may.'' See Ayestas v. Davis, 138 S.
                Ct. 1080, 1087, 1094 (2018) (regarding 18 U.S.C. 3599(f), formerly
                designated 21 U.S.C. 848(q)(9)). It is implausible that Congress, in
                chapter 154, would have rejected the propriety of the term ``may''
                while at the same time using the term ``may'' in a nearby, related
                provision. Arizona denies that the variation in language is
                significant, and it has not been shown that Arizona courts interpret
                the term ``may'' to afford boundless discretion to refuse to pay for
                expenses that are reasonably necessary.
                 Consequently, I find no basis for doubting the continuing validity
                of the Ninth Circuit's determination in Spears that Arizona has a
                mechanism for payment of reasonable litigation expenses of
                postconviction capital counsel as required by chapter 154. Nor do the
                Department's regulations provide any basis for a contrary conclusion.
                Following the statutory requirement, paragraph (d) of 28 CFR 26.22
                provides that a state capital counsel mechanism must provide for
                payment of reasonable litigation expenses of appointed counsel. The
                paragraph provides a nonexhaustive list of types of litigation
                expenses. It further states that presumptive limits on payment are
                allowed but only if means are authorized for payment of necessary
                expenses above such limits.
                [[Page 20716]]
                 Arizona has explained that it ``provides for payment of all
                reasonable litigation expenses, such as for investigative and expert
                assistance, as required by 28 U.S.C. 2265(a)(1)(A) and 28 CFR
                26.22(d).'' Letter from Office of the Arizona Attorney General, Nov.
                27, 2017, at 2. This is correct. Arizona's provisions for payment of
                reasonable litigation expenses do not exclude payment for any types of
                reasonable litigation expenses, including those listed in section
                26.22(d), and do not have presumptive limits on the amount of payment.
                Ariz. Rev. Stat. 13-4041(G), (I); id. 13-4013(B).
                 Some comments objected that judges have denied postconviction
                counsel's requests for payment of litigation expenses in some cases,
                that county expense systems may fail to provide adequate resources, and
                that there are no more definite standards to ensure statewide
                uniformity in payment of litigation expenses. However, the rule does
                not require state judges or other authorities to agree in all instances
                that the litigation expenses counsel wants are reasonably necessary,
                and it does not authorize or require the Attorney General to second-
                guess their determinations.
                 Rather, it is sufficient under the rule if the capital counsel
                mechanism provides for payment of reasonable litigation expenses in
                general terms. In this connection, the rule preamble observed that the
                statutory directive to the Attorney General is to determine whether the
                State has established a mechanism for the ``payment of reasonable
                litigation expenses.'' 28 U.S.C. 2265(a)(1)(A). The preamble noted that
                there was no persuasive reason why a State should be denied chapter 154
                certification if its mechanism requires the payment of reasonable
                litigation expenses in terms similar to chapter 154 itself, or at some
                other level of generality less specific than that urged by commenters
                on the rule. The rulemaking cited the Ninth Circuit's reasoning in
                Spears, discussed above, that chapter 154 `` `requires only that the
                state mechanism provide for the payment of reasonable litigation
                expenses. The federal statute thus assumes that a state can assess
                reasonableness as part of its process.' '' 78 FR at 58173 (quoting
                Spears, 283 F.3d at 1016).
                 The submissions concerning Arizona's current request for
                certification provided extensive information about the practical
                operation of the State's mechanism for payment of reasonable litigation
                expenses. Arizona's submissions pointed to a number of cases in which
                payment of fees and litigation expenses exceeded $500,000, and advised
                that the average reimbursement for litigation expenses was over
                $140,000 per case in Maricopa County and over $50,000 per case in Pima
                County. The rejoinder in public comments was similar to that concerning
                compensation, characterizing Arizona's examples and data as variously
                irrelevant, ambiguous, unrepresentative, misleading, incomplete, and
                inaccurate; stating that the average and high-end case figures mask or
                highlight variations among counties and cases, which may involve
                relatively low levels of expense payment; and that use of the median
                instead of the mean yields lower representative figures.
                 As with compensation, I find it unnecessary to resolve these
                factual disputes regarding the amounts attorneys have received for
                litigation expenses, and how these payments have varied among different
                cases and different parts of the State. For the reasons explained
                above, Arizona's mechanism provides for the payment of reasonable
                litigation expenses in a manner that satisfies chapter 154's
                requirements.
                F. Timeliness of Appointment
                 Chapter 154 does not specify a timeline for appointment of
                postconviction capital counsel. Nevertheless, the issue of timeliness
                has come up in judicial decisions, in the Department's regulations, and
                in the public comments on Arizona's request for certification.
                1. Historical Assessment of Timeliness
                 In Spears, the court acknowledged that ``the text of the statute
                does not specify how soon after affirmance of a defendant's conviction
                and sentence the state must extend its offer of post-conviction
                counsel.'' 283 F.3d at 1016. Nevertheless, the court believed that a
                requirement to offer counsel ``expeditiously'' was implicit in the
                context of chapter 154 and its legislative history. Id. The court then
                concluded that this implicit requirement was satisfied by an Arizona
                statutory provision, existing at the time of the appointment considered
                in that case, that required appointment of postconviction capital
                counsel within 15 days of the filing of the notice of postconviction
                relief. See 283 F.3d at 1016-18.
                 Arizona law no longer requires appointment of postconviction
                counsel within a 15-day period. The change could lead some to question
                whether Arizona is now in compliance with the implicit timeliness
                requirement discerned by the court in Spears. Chapter 154 has since
                been amended, however, to specify that ``[t]here are no requirements
                for certification or for application of this chapter other than those
                expressly stated in this chapter.'' 28 U.S.C. 2265(a)(3). Hence,
                whether Arizona's statutes in their current form would satisfy the
                implicit timeliness requirement discerned in Spears is irrelevant to
                whether Arizona's capital counsel mechanism satisfies chapter 154's
                current requirements.
                 The court in Spears also concluded that Arizona was not entitled to
                the benefit of chapter 154's expedited review procedures in the case
                before it, notwithstanding its determination that Arizona had in place
                a system meeting the chapter 154 criteria, because ``a state must
                appoint counsel in compliance with its own system before a federal
                court will enforce the Chapter 154 time line on its behalf in a
                particular case.'' 283 F.3d at 1018. The court noted that counsel had
                not been appointed within the then-existing 15-day timeframe under
                Arizona's statutes. Id. at 1018-19. As discussed above, however, the
                current provisions of chapter 154 assign the determination whether a
                State has appointed counsel in compliance with its own system in a
                particular case to the federal habeas court presented with the case. It
                is not part of the Attorney General's determination whether the State
                has established a capital counsel mechanism satisfying the requirements
                of chapter 154. See 28 U.S.C. 2261(b); 78 FR at 58166. Hence, this
                aspect of Spears is also not relevant to my determination whether
                Arizona's capital counsel mechanism satisfies chapter 154's current
                requirements.
                2. Timeliness Under Current Chapter 154
                 The regulations implementing chapter 154 define the term
                ``appointment'' to include a timeliness requirement. See 28 CFR 26.21.
                Arizona's mechanism satisfies this requirement.
                 Specifically, section 26.21 defines ``appointment'' to mean
                ``provision of counsel in a manner that is reasonably timely in light
                of the time limitations for seeking State and Federal postconviction
                review and the time required for developing and presenting claims in
                the postconviction proceedings.'' Id. The regulatory interpretation of
                ``appointment'' is related to chapter 154's time limit for applying for
                federal habeas corpus review. As provided in 28 U.S.C. 2263, an
                application for habeas corpus under chapter 154 must be filed not later
                than 180 days from the date the conviction and sentence become final on
                direct
                [[Page 20717]]
                review, subject to tolling (i) during the pendency of a petition for
                certiorari in the Supreme Court, (ii) ``from the date on which the
                first petition for postconviction review or other collateral relief is
                filed until the final State court disposition of such petition,'' and
                (iii) for an additional period not exceeding 30 days on a showing of
                good cause. 28 U.S.C. 2263. The second ground for tolling allows the
                180-day time limit to run until a state postconviction petition is
                filed and allows it to resume upon the conclusion of state
                postconviction proceedings. This effectively limits the time available
                both to initiate state postconviction proceedings and to file for
                federal habeas corpus review thereafter.
                 Against this background, the Department's rulemaking reflected a
                concern that appointment of counsel may not be meaningful unless it is
                reasonably prompt. For if it is delayed, little or no time may remain
                for the prisoner to file a petition for state postconviction review
                with the assistance of counsel, and little or no time may remain for
                the prisoner to apply for federal habeas corpus review after the
                conclusion of state postconviction review. The rule accordingly
                provides that appointment in the context of chapter 154 means
                appointment that is reasonably timely in light of the time limitations
                for seeking state and federal postconviction review and the time
                required for developing and presenting related claims. See 78 FR 58165-
                67, 58176-77.
                 Assessment of this issue in relation to Arizona's capital counsel
                mechanism requires consideration of its procedures relating to
                applications for postconviction relief and appointment of counsel. In a
                capital case, the time limit for filing a state postconviction petition
                begins to run with the filing of a notice of postconviction relief. The
                clerk of the Arizona Supreme Court files the notice after the court
                issues its mandate affirming the conviction and sentence. The mandate
                is not issued until the conclusion of any proceedings for certiorari
                from the U.S. Supreme Court. See Ariz. Rev. Stat. 13-4243(D); Ariz. R.
                Crim. P. 31.22(c), 32.4(a)(2)(B), (c)(1); see also Spears, 283 F.3d at
                1011-12, 1018.
                 The timing rules concerning appointment of postconviction capital
                counsel have existed in three forms during the period considered in
                this certification. Initially, the rules required appointment of
                counsel within 15 days from the filing of the notice of postconviction
                relief. An amendment preceding the Spears decision removed the 15-day
                time frame. The current rules direct appointment of counsel after the
                Arizona Supreme Court's affirmance of the conviction and sentence. See
                Ariz. Rev. Stat. 13-4041(B); Ariz. R. Crim. P. 32.4(b)(1); Spears, 283
                F.3d at 1000, 1012, 1018.
                 Thus, Arizona law currently allows for the appointment of counsel
                as soon as the Arizona Supreme Court affirms the conviction and
                sentence. This precedes the issuance of the Arizona Supreme Court's
                mandate and the filing of the notice of postconviction relief, which
                are deferred pending any petition for certiorari from the U.S. Supreme
                Court. If suitable counsel is not available for appointment at that
                time, the Arizona Supreme Court may avoid prejudice to the defendant
                with respect to the time available for seeking state postconviction
                relief by delaying the notice of postconviction relief or staying the
                time limit for applying for postconviction relief. See Letter from the
                Office of the Arizona Attorney General, Oct. 16, 2018, at 10-11. The
                materials submitted by the State and public commenters include numerous
                Arizona Supreme Court orders that show that the time limit for seeking
                state postconviction relief was suspended pending the appointment of
                counsel.
                 Whether this process results in timely appointment of counsel, as
                defined in the Department's regulations, presents different issues in
                relation to state postconviction filing and federal habeas filing. I
                discuss these matters separately.
                3. State Postconviction Filing
                 Comments on the issue of timeliness in appointment agree that any
                delays in the appointment of counsel in Arizona do not prevent timely
                filing of state postconviction petitions. See Letter from AFPD, Nov. 5,
                2018, at 16-17 (commenter ``agrees that Arizona's delays in appointing
                postconviction counsel will not prevent a prisoner from filing a first
                state petition for postconviction review''); Letter from AFPD, Jan. 7,
                2019, at 27 (commenter ``does not generally disagree'' that ``delays in
                appointing postconviction counsel will not prevent a prisoner from
                filing a timely first state petition for postconviction review''). The
                comments nevertheless contend that ``Arizona's customary practice'' of
                appointing counsel in a manner allowing the timely filing of state
                postconviction petitions ``cannot substitute for a valid statewide
                mechanism that mandates timely appointment'' because ``[a] practice can
                change at any time and is not governed by rule or statute.'' Id. at 27-
                28 n.115.
                Chapter 154 does not require that the elements of a qualifying
                capital counsel mechanism be adopted or articulated in any particular
                manner or form. Chapter 154 originally included language that made the
                chapter applicable if a State established a qualifying capital counsel
                mechanism by ``statute'' or by ``rule of its court of last resort.''
                See 28 U.S.C. 2261(b), 2265(a) (1996). In two decisions, the Ninth
                Circuit deemed California's capital counsel mechanism inadequate under
                chapter 154 because it was not fully articulated in a ``statute'' or
                ``rule,'' dismissing as insufficient other ``policy,'' ``practice,'' or
                ``compliance in practice'' by the California Supreme Court. See Ashmus
                v. Woodford, 202 F.3d 1160, 1165-66, 1169 (9th Cir. 2000); Ashmus v.
                Calderon, 123 F.3d at 1207-08. Congress reacted by amending chapter 154
                to eliminate the statute-or-rule language. See Public Law 109-177, sec.
                507, 120 Stat. at 250-51; see also 152 Cong. Rec. at 2446 (remarks of
                Sen. Kyl) (``The `statute or rule of court' language construed so
                severely by Ashmus is removed, allowing the States flexibility on how
                to establish the mechanism within the State's judicial structure.'');
                78 FR at 58164-65; 73 FR at 75332, 75334. Consequently, conceding that
                Arizona appoints counsel in a manner that allows prisoners to file
                timely state postconviction petitions, but characterizing this aspect
                of Arizona's system as a ``customary practice,'' does not negate the
                State's satisfaction of chapter 154's requirements.
                 Moreover, the comment that customary practices can change at any
                time does not establish a material difference from rules and statutes,
                because rules and statutes can also change over time, by action of the
                rulemaking authority or the legislature. If such a change occurs, its
                significance may be addressed in a future request for recertification
                of the State's mechanism. See 78 FR at 58181; 28 CFR 26.23(d).
                Regardless of the form of the relevant policy, speculation that a
                future change in Arizona's mechanism will deny prisoners adequate time
                to seek state postconviction review because of delay in the appointment
                of counsel does not bear on my determination that Arizona's existing
                mechanism is consistent with chapter 154's requirements as interpreted
                in the Department's regulations. Arizona has in fact ``established a
                mechanism for the appointment . . . of . . . counsel,'' 28 U.S.C.
                2265(a)(1)(A), ``in a manner that is reasonably timely in light of the
                time limitation[] for seeking State . . . postconviction review,'' 28
                CFR 26.21.
                [[Page 20718]]
                4. Federal Habeas Filing
                 I next consider the question of timely appointment of counsel with
                respect to the time available for seeking state and federal
                postconviction review under 28 U.S.C. 2263.
                 In assessing this question, I start with the Ninth Circuit's
                decision in Isley v. Arizona Department of Corrections, 383 F.3d 1054
                (9th Cir. 2004). In that case, the court considered a similar issue in
                relation to the general time limit for federal habeas filing under 28
                U.S.C. 2244(d). Section 2244(d) parallels 28 U.S.C. 2263 in relevant
                respects, providing that its limitation period normally starts to run
                at the conclusion of direct review, but is tolled during the time
                period in which ``a properly filed application for State post-
                conviction or other collateral review . . . is pending.'' 28 U.S.C.
                2244(d)(2). The question presented was whether the relevant application
                for state postconviction review is the defendant's ``notice of post-
                conviction relief'' or his later-filed petition for post-conviction
                relief. See Isley, 383 F.3d at 1055-56.
                 The court concluded that the earlier notice of postconviction
                relief was the relevant filing that stopped the clock. The court
                reasoned that the notice of postconviction relief is ``a critical
                stage'' that ``set[s] in motion'' Arizona's postconviction review
                mechanism and begins the running of the time limit for filing the
                formal petition for postconviction relief. Id. at 1055-56.
                Consequently, ``Isley's state petition was `pending' within the meaning
                of 28 U.S.C. 2244(d)(2),'' and he was entitled to tolling, from the
                date the notice of postconviction relief was filed. Id at 1056.
                 In capital cases, Arizona does not place on the defendant the
                burden of filing the notice of postconviction relief that initiates
                postconviction review proceedings. Instead, it directs the clerk of the
                Arizona Supreme Court to file the notice of postconviction relief once
                the Arizona Supreme Court has issued its mandate affirming the
                conviction and sentence in capital cases. See Ariz. Rev. Stat. 13-
                4041(B), 13-4234(D). It is this filing that commences the state
                postconviction proceedings and tolls the federal habeas time limit. See
                Isley, 383 F.3d at 1056.
                 The Isley understanding of the trigger for tolling the federal
                habeas time limit is logical whether the applicable time limit is
                provided by section 2244(d) or section 2263. It resolves the concern
                that delay in the appointment of counsel, and consequent delay in
                filing a clock-stopping formal petition, will result in the erosion or
                expiration of the time to seek federal habeas relief, which would bring
                into play the timeliness concerns underlying the definition of
                appointment in 28 CFR 26.21.
                 As noted above, comments on this issue ``agree that Arizona's
                delays in appointing postconviction counsel will not prevent a prisoner
                from filing a first state petition for postconviction relief,'' but
                they question whether the same is true with respect to filing a federal
                habeas petition. Letter from AFPD, Nov. 5, 2018, at 16-18. The
                underlying concern is that, under Isley, ``the Notice tolls the
                [federal] statute of limitations'' but ``it is unclear whether it does
                the same under Chapter 154.'' Letter from AFPD, Feb. 22, 2018, at 138.
                The comments point in this connection to a statement in Spears, 283
                F.3d at 1017, that ``the statute does not provide for the [statute of
                limitations] to be tolled during the time a petitioner is awaiting
                appointment of counsel.'' Letter from AFPD, Feb. 22, 2018, at 138; see
                id. at 157-58.
                 However, the court in Spears did not consider the possibility that,
                in the context of Arizona's system, it is the notice of postconviction
                relief, rather than a later filing presenting the defendant's claims
                for relief, that commences state postconviction proceedings and tolls
                the federal time limit. When the Ninth Circuit was presented with this
                question two years later in Isley, it held that the notice is the
                critical filing. As discussed above, it would be illogical to
                distinguish between section 2244(d) and section 2263 in this regard,
                and there is no reason to believe that federal habeas courts will do
                so.
                 More broadly, I expect that the federal courts will interpret and
                apply section 2263 fairly so as to afford prisoners under sentence of
                death a reasonable amount of time to seek state and federal
                postconviction review, as they have done with the general federal
                habeas time limit under section 2244(d) and the corresponding time
                limit for motions by federal prisoners under 28 U.S.C. 2255. See, e.g.,
                Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998).
                Speculation to the contrary provides no ground for concluding that
                Arizona's mechanism fails to satisfy the rule's requirement of
                reasonably timely appointment.
                 Many of the public comments provided information about the time
                required for appointment of postconviction capital counsel in Arizona.
                Prisoners under sentence of death in Arizona often stated, in their
                comments, how long it took to appoint counsel in their individual
                cases. AFPD advised that the average delay in appointment of counsel
                from the Arizona Supreme Court's decision affirming a capital case to
                the appointment was 711 days from 2000 to 2011 and 256 days from 2011
                to the present. See Letter from AFPD, Feb. 22, 2018, at 140.
                 These figures are uninformative, however, regarding satisfaction of
                28 CFR 26.21's timeliness requirement, because the time limits for
                state and federal postconviction review do not run continuously from
                the date of the Arizona Supreme Court's decision affirming a capital
                conviction and sentence. Ascertaining whether Arizona's mechanism
                provides for reasonably timely appointment, considering the time limits
                for seeking state and federal postconviction review and the time
                required for developing and presenting related claims, requires a more
                discriminating analysis of the rules and policies affecting the time
                available for filing postconviction petitions and their interaction
                with the timing of the appointment of counsel. This analysis, as set
                forth above, indicates that Arizona's mechanism does provide for
                appointment of counsel that is reasonably timely in the relevant sense.
                 Finally, there is no concern about executions being carried out in
                Arizona during delay in the appointment of postconviction counsel,
                because Arizona does not carry out executions prior to the conclusion
                of the initial state postconviction proceedings. See Ariz. Rev. Stat.
                13-759(A).
                 Consequently, Arizona's capital counsel mechanism comports with the
                definition of appointment in section 26.21, including its timeliness
                requirement.
                III. Date the Mechanism Was Established
                 Arizona has requested that I determine that it established its
                qualifying capital counsel mechanism as of July 17, 1998, referring to
                the date of appointment of postconviction counsel for the defendant in
                Spears, the case in which the Ninth Circuit determined that Arizona had
                established a mechanism satisfying the requirements of chapter 154.
                However, the elements of the mechanism approved by the Ninth Circuit in
                Spears were in place as of May 19, 1998. Specifically, the final
                element was the amendment of Arizona Revised Statutes section 13-4041
                relating to compensation and payment of litigation expenses, which
                became effective on May 19, 1998. See 1998 Ariz. Sess. Laws, Ch. 120,
                sec. 1. Consequently, I determine that the date
                [[Page 20719]]
                Arizona established the mechanism I now certify is May 19, 1998.
                IV. Other Matters
                 Some of the public comments opposed certification of Arizona's
                mechanism on grounds that amounted to criticisms of chapter 154 itself,
                often relating to chapter 154's time limit for federal habeas filing or
                its time limits for federal habeas courts to complete the adjudication
                of capital habeas petitions. Granting certification as requested by the
                State, they maintained, with the resulting applicability of chapter
                154's federal habeas review procedures, would have unconstitutional or
                unfair effects on capital defendants in Arizona.
                 My responsibility under chapter 154 is to determine whether a State
                has established a postconviction capital counsel mechanism that
                satisfies the chapter's requirements. It is not to entertain
                constitutional challenges or policy objections to the underlying
                statutes. Nevertheless, I will address these objections because they
                have been raised as grounds for denying certification to Arizona and
                because they misrepresent chapter 154 itself and the Constitution as it
                bears on the validity of chapter 154.
                 Before turning to particular issues, I note by way of background
                that, at the time of the Powell Committee Report in 1989, the average
                delay between imposition and execution of a capital sentence was about
                8 years. Since that time, the average delay between imposition and
                execution of a capital sentence has increased, standing at around 20
                years (243 months) at the end of 2017. In relation to Arizona, in
                particular, the submissions elicited by the State's request for chapter
                154 certification show capital cases in which the litigation has
                continued for more than 20 years. On a nationwide basis, there were
                2,703 prisoners under sentence of death at the end of 2017--and 23
                executions were carried out in that year. See Bureau of Justice
                Statistics, Capital Punishment, 2017: Selected Findings, at 2 tbl. 1;
                id. at 4 tbl. 3. Thus, the litigation problems to which chapter 154 is
                addressed have compounded over time, with profound effects on the
                justice system's ability to use the sanction of capital punishment for
                the gravest crimes.
                A. Time Limits Under Chapter 154
                 As noted above, the criticisms of chapter 154 in the public
                comments largely relate to the chapter's time limitation rules for
                federal habeas litigation in capital cases.
                1. Time Limit for Federal Habeas Filing
                 Some commenters objected to the 180-day time limit for federal
                habeas filing under 28 U.S.C. 2263, which is shorter than the 1-year
                period under 28 U.S.C. 2244(d). The possibility that a shorter time
                limit might apply to pending cases following a certification,
                commenters stated, creates difficulty in advising clients and leads to
                the hasty filing of pro forma petitions for protective reasons. They
                expressed the concern that application of the reduced time limit may
                result in retrospective determinations that federal habeas filings,
                though consistent with the currently applicable section 2244(d) time
                limit, were untimely under section 2263 and subject to dismissal on
                that basis. Consequently, they maintain, certifying Arizona's capital
                counsel mechanism may deny prisoners due process or result in the
                execution of prisoners who would have obtained relief had their claims
                been heard. Commenters also raised other objections to section 2263,
                including that its time limit is too short to allow adequate
                investigation and preparation of claims or to secure evidence of their
                clients' innocence, or that the section 2263 time limit's starting
                point will leave insufficient time for seeking postconviction review
                when taken in conjunction with the timing rules for the U.S. Supreme
                Court's certiorari process.
                 Regarding uncertainty about the time limit that will apply, that
                possibility is inherent in Congress's design of the statutory scheme
                for federal habeas review and the fact that Congress sometimes decides
                to make changes. Essentially the same issue was presented by the
                enactment in 1996 of 28 U.S.C. 2244(d), which created a 1-year time
                limit for federal habeas filing, where there had previously been no
                time limit for federal habeas filing. Courts did not apply the new
                section 2244(d) time limit so as to unfairly bar petitions filed in
                existing cases, but rather ensured the availability of the 1-year
                period to all petitioners. See, e.g., Calderon v. U.S. Dist. Ct. for
                the Cent. Dist. of Cal., 128 F.3d 1283, 1287 (9th Cir. 1997); see also
                Calderon v. Ashmus, 523 U.S. at 748 & n.3 (explaining that uncertainty
                about applicable time limit does not confer standing to challenge
                application of chapter 154); Habeas Corpus Resource Ctr., 816 F.3d at
                1250 (same, regarding challenge to regulations implementing chapter
                154). I expect that the federal courts will similarly apply the chapter
                154 time limit, where it is newly applicable, in a manner that ensures
                fundamental fairness. However the courts address this issue, it is not
                a matter under the control of the Attorney General or the State of
                Arizona, and it does not bear on whether Arizona has established a
                capital counsel mechanism satisfying the requirements of chapter 154.
                 The same is true regarding such matters as the adequacy of the time
                provided for federal habeas filing under chapter 154. Congress
                evidently regarded the 180-day period for federal habeas filing under
                28 U.S.C. 2263, subject to tolling, as adequate and warranted,
                considering the availability of counsel to the petitioner throughout
                the state court litigation, and the unique problem of litigation delay
                in capital cases. See 137 Cong. Rec. at 6013; 135 Cong. Rec. at 24694-
                95, 24697-98 (Powell Committee Report). Congress has broad authority
                under the Constitution to determine federal habeas procedure. See
                Felker v. Turpin, 518 U.S. 651, 664 (1996) (``judgments about the
                proper scope of the writ are `normally for Congress to make' '')
                (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). Even if I were
                to agree--and I do not--that such adjustments of federal habeas
                procedure are problematic on constitutional or prudential grounds, I
                have no authority to overrule Congress's decisions in these matters.
                Nor do I have authority to add to chapter 154's express requirements,
                see 28 U.S.C. 2265(a)(3), which forecloses requiring the State to waive
                chapter 154's time limits--as some commenters may wish--as a condition
                of certification.
                 Noting that section 2263(b)(1) does not provide for tolling until a
                petition for certiorari is filed or the time for seeking certiorari
                expires, some comments expressed a concern that much of the limitation
                period may be consumed if the defendant does not petition for
                certiorari soon after ``final State court affirmance of the conviction
                and sentence on direct review.'' 28 U.S.C. 2263(a). However, the
                comments recognized that this will not occur if the triggering event
                under section 2263(a) is understood to be the Arizona Supreme Court's
                issuance of its mandate--which does not occur until after the U.S.
                Supreme Court's certiorari process. The interpretation of section 2263
                on this point is a matter under the control of the federal courts, not
                the Attorney General or the State of Arizona, and it does not conflict
                with my determination that Arizona has established a qualifying capital
                counsel mechanism under chapter 154.
                [[Page 20720]]
                2. Time Limits for Federal Habeas Adjudication
                 Beyond the criticisms of the chapter 154 time limit for federal
                habeas filings, some comments objected that the 28 U.S.C. 2266 time
                limits for federal district courts and courts of appeals to adjudicate
                federal habeas petitions are unfair and unconstitutional, contrasting
                them to the longer periods of time that federal courts typically take
                now in adjudicating federal habeas petitions in capital cases. Like the
                other constitutional and policy critiques of chapter 154 appearing in
                the public comments, these comments do not bear on the question I am
                charged with answering: Whether Arizona has established a capital
                counsel mechanism satisfying chapter 154's requirements. And like the
                other criticisms of chapter 154, these objections are not well founded.
                 Defining rules of federal judicial procedure is an exercise of
                legislative power that the Constitution vests in Congress. See Sibbach
                v. Wilson & Co., 312 U.S. 1, 9-10 (1941) (``Congress has undoubted
                power to regulate the practice and procedure of federal courts'')
                (footnote omitted). Congress may delegate some rulemaking authority to
                the courts, as it has done in the Rules Enabling Act, 28 U.S.C. 2071-
                77, and courts may decide such matters in default of legislative
                action--neither of which detracts from Congress's paramount authority
                in this area. See id.; see also, e.g., Mistretta v. United States, 488
                U.S. 361, 386-88 (1989); Palermo v. United States, 360 U.S. 343, 345-48
                (1959). That includes the authority to determine the procedures for
                federal review of state prisoners' applications for habeas corpus. See
                Felker, 518 U.S. at 664; Lonchar, 517 U.S. at 323.
                 The principal timing rules for adjudications under chapter 154 are
                as follows: Section 2266(a) provides that federal habeas applications
                subject to chapter 154 are to be given priority by the district court
                and by the court of appeals over all noncapital matters. Section
                2266(b) provides that a district court is to complete its adjudication
                of a capital habeas petition within 450 days of filing or 60 days of
                submission for decision, subject to a possible 30-day extension.
                Section 2266(c) provides that appellate panels are to render their
                decisions within 120 days of completion of briefing, that requests for
                rehearing or rehearing en banc are to be decided within 30 days of the
                request or a responsive pleading, and that a rehearing or rehearing en
                banc is to be decided within 120 days of the date it is granted.
                 The public comments provided no persuasive reason why these time
                periods for adjudication should be considered unreasonable or beyond
                Congress's authority over matters of judicial procedure. Nor did the
                comments provide any persuasive reason to reach such a conclusion with
                respect to the application of these time limits to pending cases. In
                relation to such cases, the sponsor of the 2006 amendments to chapter
                154 explained the application of the amendments' effective-date
                provision, appearing in section 507(d) of Public Law 109-177, as
                starting the time limits when the Attorney General certifies that the
                State has established a qualifying capital counsel mechanism. So
                understood, they will not impose impossible requirements on courts to
                conclude the adjudication of pending capital cases within time frames
                that have already passed. See 152 Cong. Rec. at 2449 (remarks of Sen.
                Kyl); cf. Br. for Appellants at 22-23, Habeas Corpus Resource Ctr. v.
                U.S. Dep't of Justice, 816 F.3d 1241 (9th Cir. 2016) (No. 14-16928)
                (explaining similar application of section 2244(d) time limit to
                pending cases).
                 Because protracted collateral litigation impedes the execution of
                capital sentences, it is reasonable for Congress to provide that courts
                are to prioritize these proceedings and to set limits on their
                duration. See 152 Cong. Rec. at 2441-48 (2006) (remarks of Sen. Kyl);
                151 Cong. Rec. at E2639 (extension of remarks of Rep. Flake); 137 Cong.
                Rec. at 6013-14 (legislative history); 135 Cong. Rec. at 24694-95
                (Powell Committee Report). If petitioners believe that the time limits
                for adjudicating petitions are unconstitutional as applied to their
                cases, they may so argue to the federal habeas courts that adjudicate
                their petitions. However the courts may rule on such claims, it has no
                bearing on the question whether Arizona has established a capital
                counsel mechanism satisfying the requirements of chapter 154.
                3. Litigation Burdens
                 In addition to criticisms based on the differences between the
                chapter 154 time limits and the time now required for capital federal
                habeas litigation, public comments expressed concerns about novel
                litigation burdens under chapter 154, such as having to litigate under
                28 U.S.C. 2261(b)(2) the question whether the defendant's state
                postconviction counsel was appointed pursuant to the certified state
                mechanism. But litigation of this nature will not necessarily be common
                or burdensome. See 152 Cong. Rec. at 2446 (remarks of Sen. Kyl)
                (discussing limited nature of inquiry).
                 Moreover, the critical comments did not consider the ways in which
                the application of chapter 154 may reduce burdens for defense counsel.
                See 73 FR at 75336 (``the chapter 154 procedures eliminate a number of
                burdens that defense counsel would otherwise bear''). The differences
                include the automatic stay provisions of 28 U.S.C. 2262, which should
                reduce the need to engage in litigation over stays of execution.
                Chapter 154 also provides, in section 2264, clearer and tighter rules
                concerning claims cognizable in federal habeas review. This will
                relieve federal habeas counsel of the need to develop and present
                claims that may be cognizable under the general habeas rules but are
                not cognizable under chapter 154. See 152 Cong. Rec. at 2448-49
                (remarks of Sen. Kyl). Federal habeas counsel will not need to litigate
                questions concerning the exhaustion of state remedies, and will be
                relieved of other burdens incident to the movement of cases between the
                state courts and the federal courts resulting from the exhaustion
                requirement of 28 U.S.C. 2254(b)-(c), because it does not apply under
                chapter 154. See 28 U.S.C. 2264(b) (``Following review subject to
                subsections (a), (d), and (e) of section 2254, the court shall rule on
                the claims properly before it.''); see also 152 Cong. Rec. at 2447-48
                (remarks of Sen. Kyl); 135 Cong. Rec. at 24695, 24698 (Powell Committee
                Report).
                 Likewise, chapter 154 reduces or eliminates a number of burdens and
                causes of delay for federal habeas courts. The automatic stay provision
                reduces the need to adjudicate requests for stays of execution. Courts
                will not need to review and decide claims that are disallowed under
                section 2264. Adjudication of questions concerning exhaustion of state
                remedies will not be required because the exhaustion requirement does
                not apply under chapter 154. For the same reason, delays that result
                from sending unexhausted claims back to state court for exhaustion of
                state remedies will no longer occur.
                 Consequently, the time required under currently applicable law for
                counsel to prepare federal habeas petitions, and for federal habeas
                courts to complete their adjudications, are not reliable indicators of
                how much time will be needed under the chapter 154 procedures.
                Objections to certification of Arizona's mechanism premised on the
                assumption that the time requirements in either case must be similar
                are not well-founded.
                [[Page 20721]]
                B. Validity of the Implementing Rule
                 Some comments challenged the implementing rule for chapter 154,
                Subpart B of 28 CFR part 26, arguing that it is invalid on procedural
                and substantive grounds. These criticisms are not well founded and in
                any event do not bear on this certification. See Br. for Appellants at
                28-49 and Reply Br. for Appellants at 15-28, Habeas Corpus Resource
                Ctr. v. U.S. Dep't of Justice, 816 F.3d 1241 (9th Cir. 2016) (No. 14-
                16928).
                C. Request for a Stay
                 Some comments asked that I stay my certification of Arizona's
                mechanism pending judicial review of my determination, arguing the
                matter on the terms a court would consider in deciding whether to order
                a stay--likelihood that the determination will be overturned on
                judicial review, alleged irreparable harm to the commenters and their
                clients, alleged lack of harm to Arizona and other interested parties,
                and the public interest. Chapter 154 creates no requirement that I
                grant a stay, however, and I decline to do so.
                 Chapter 154 conditions its applicability on the Attorney General's
                determination that a State has established a capital counsel mechanism
                satisfying its requirements--not on the completion of judicial review
                of my determination. See 28 U.S.C. 2261(b), 2265. Also, 28 U.S.C.
                2265(a)(1)(B), (a)(2) directs me to determine the date on which the
                state capital counsel mechanism was established and makes that date the
                effective date of the certification. Thus, chapter 154 applies to cases
                in which postconviction counsel was appointed pursuant to the
                mechanism, though the appointment occurred prior to the publication of
                this notice. See 152 Cong. Rec. at 2449 (remarks of Sen. Kyl)
                (explaining effect of section 2265(a)(2)); 151 Cong. Rec. at E2640
                (extension of remarks of Rep. Flake) (same); Habeas Corpus Resource
                Ctr., 816 F.3d at 1245 (``[t]he certification is effective as of the
                date the Attorney General finds the state established its adequate
                mechanism''). A stay would mean, however, that the certification would
                not yet be effective in relation to cases in which state postconviction
                counsel was appointed on or after May 19, 1998--notwithstanding my
                determination that Arizona established a capital counsel mechanism
                satisfying chapter 154 on that date--but would only take effect at some
                unpredictable future time when litigation relating to the certification
                has run its course.
                 Moreover, the commenters' arguments for a stay were not convincing.
                It is not likely that a challenge to the certification will prevail on
                the merits because Arizona has in fact established a mechanism
                satisfying the requirements of chapter 154, as explained in this
                notice. The Ninth Circuit's determination in Spears that Arizona has
                established a capital counsel mechanism satisfying the requirements of
                chapter 154--a mechanism that has not changed materially since the time
                of that decision--makes it particularly unlikely that another court
                will reach a different conclusion.
                 Even if there were a likelihood of a challenge succeeding on the
                merits, there is no public interest, or prospect of irreparable injury,
                that justifies a stay. The commenters' claims on these points largely
                relate to a concern that the time available to seek federal habeas
                review will be severely curtailed or eliminated if the time limit of 28
                U.S.C. 2263 becomes applicable. This concern is not well founded and
                does not bear on the validity of the certification as explained above.
                Commenters also raised, in this connection, criticisms of other aspects
                of chapter 154, including provisions of 28 U.S.C. 2264 and 2266 that
                limit review of procedurally defaulted claims and amendment of
                petitions, and the provisions that set time limits for federal habeas
                courts to conclude their review of state capital cases. These features
                of chapter 154 are legislative responses to the unique problems of
                delay in capital litigation and are within Congress's constitutional
                authority over matters of judicial procedure in federal habeas review,
                as discussed above. The litigation and adjudication of cases in
                conformity with the applicable legal rules are not sources of
                ``injury'' supporting a stay. All of these claims amount to criticisms
                of chapter 154 itself. They may arise in future habeas corpus
                litigation, but they do not bear on the question before me. See
                Calderon v. Ashmus, 523 U.S. at 746-49.
                 On the other side of the ledger, Arizona will be harmed if it is
                denied the benefits of the chapter 154 review procedures, to which it
                is legally entitled based on its establishment of a capital counsel
                mechanism satisfying the requirements of chapter 154. The survivors of
                victims murdered by persons under sentence of death in Arizona will be
                harmed by a stay, prolonging their suffering and further denying them
                the closure of a final disposition of the cases that concern them. See
                152 Cong. Rec. at 2441-47 (remarks of Sen. Kyl); 151 Cong. Rec. at
                E2639 (extension of remarks of Rep. Flake). There will also be harm to
                any persons under sentence of death in Arizona who would be granted
                relief on a final disposition of their federal habeas petitions, but
                whose cases now linger for years or decades because there is no
                requirement that the cases be accorded priority or concluded within any
                time frame. As noted above, the submissions elicited by Arizona's
                request for certification show instances in which the litigation of
                Arizona capital cases has continued for over 20 years. Staying the
                remediation Congress has adopted, to which Arizona is entitled, would
                be harmful to many and not in the public interest.
                 Consequently, I do not stay my certification of Arizona's
                postconviction capital counsel mechanism and the effective date of the
                certification is May 19, 1998, in conformity with 28 U.S.C. 2265(a)(2).
                 Dated: April 6, 2020.
                William P. Barr,
                Attorney General.
                [FR Doc. 2020-07617 Filed 4-13-20; 8:45 am]
                 BILLING CODE 4410-19-P
                

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