HABEAS CORPUS RESOURCE CENTER AND THE OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF ARIZONA, Plaintiffs,
UNITED STATES DEPARTMENT OF JUSTICE AND ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS UNITED STATES ATTORNEY GENERAL, Defendants.
ORDER GRANTING PLAINTIFFS' APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE DOCKET NO. 7
CLAUDIA WILKEN, District Judge.
On September 30, 2013, Plaintiffs Habeas Corpus Resource Center (HCRC) and the Office of the Federal Public Defender for the District of Arizona (FDO-AZ) brought an action for injunctive relief to set aside the September 23, 2013 Final Rule regarding Certification Process for State Capital Counsel System, 78 Fed. Reg. 58, 160. The Final Rule was issued by Defendants United States Department of Justice (DOJ) and United States Attorney General Eric Holder on September 23, 2013 and will become effective on October 23, 2013. On October 4, 2013, Plaintiffs moved for (1) a temporary injunction enjoining Defendants from putting into effect the Final Rule pending a ruling on a preliminary injunction, and (2) order to show cause for a preliminary injunction hearing. Docket No. 7. Due to the lapse in appropriations, Defendants did not respond to Plaintiffs' motion and moved for a stay in litigation. Docket No. 13.
A. Chapter 154
The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 added chapter 154 of Title 28 of the United States Code. Chapter 154 provides expedited procedures in federal capital habeas corpus cases when a state is able to establish that it has provided qualified, competent, adequately resourced and adequately compensated counsel to death-sentenced prisoners. Under the AEDPA, federal courts were responsible for determining whether states were eligible for the expedited federal procedures. The USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-174, 120 Stat. 192 (2005), amended chapter 154 to shift the eligibility determination from the federal courts to the Attorney General.
In December 2008, the Attorney General published a final rule to implement the procedure prescribed by chapter 154. On January 20, 2009 this Court granted a preliminary injunction, enjoining Defendants from putting into effect the regulation without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such a period. See Habeas Corpus Resource Ctr. v. United States Department of Justice , 2009 WL 185423 (N.D. Cal.) at *10. The regulation did not go into effect. In November 2010, Defendants published a final rule removing the regulation.
The DOJ published a new proposed rule on March 3, 2011. 76 Fed. Reg. 11, 705. The comment period closed on June 1, 2011. The DOJ then published a supplemental notice of proposed rulemaking on February 13, 2012. 77 Fed. Reg. 7559. The comment period closed on March 14, 2012. On September 2013, the Final Rule was published.
Section 26.22 of the Final Rule prescribes the standards a state must meet in order to earn certification under 28 U.S.C. §§ 2261 and 2265. Section 26.22(b) prescribes three different ways a state may meet the requirements for providing competent counsel. The first two are based on statutory criteria. The third allows a state to be certified if the competency standards "reasonably assure a level of proficiency appropriate for State post-conviction litigation in capital cases." 78 Fed. Reg. 58, 182.
Section 26.23 provides the certification process. A state must "request in writing" a certification that it meets the requirements of § 26.22. Upon receiving the state's request, the Attorney General will make the request publicly available on the Internet; publish a notice in the Federal Register, identifying the Internet address at which the public may view the state's request; and solicit public comments. The Attorney General will review the state's request and public comments, and will publish the certification in the Federal Register if the certification is granted. A certification remains effective for a period of five years after the completion of the certification process by the Attorney General and any related judicial review. 78 Fed. Reg. 58, 184.
Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See Dumas v. Gommerman , 865 F.2d 1093, 1095 (9th Cir. 1989). To qualify for a preliminary injunction, the moving party must demonstrate "(1) a likelihood of success on the merits; (2) a significant threat of irreparable injury; (3) that the balance of hardships favors the applicant; and (4) whether any public interest favors granting an injunction." Raich v. Ashcroft , 352 F.3d 1222, 1227 (9th Cir. 2003). "[T]he required showing of harm varies inversely with the required showing of meritoriousness." Indep. Living Ctr. of S. Cal., Inc. v. Shewry , 543 F.3d 1047, 1049 (9th Cir.2008) (citation omitted).
I. Likelihood of Success on ...