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 PRELIMINARY INJUNCTION
CLAUDIA WILKEN, District Judge.
On October 18, 2013, the Court issued an order to show cause why a preliminary injunction should not issue and a temporary restraining order enjoining Defendants until November 1, 2013 from putting into effect the rule entitled, "Certification Process for State Capital Counsel Systems, " published at 78 Fed. Reg. 58, 160 (Sept. 23, 2013). The order was issued ex parte. Due to the lapse in appropriations, Defendants had filed a request for a stay and had not yet filed an opposition. On October 23, 2013, the parties submitted a stipulation for an extended briefing schedule in which they agreed to extend the temporary restraining order for an additional fourteen days. Plaintiffs Habeas Corpus Resource Center (HCRC) and the Office of the Federal Public Defender for the District of Arizona (FDO-Arizona) seek a preliminary injunction. Defendants United States Department of Justice (DOJ) and United States Attorney General Eric H. Holder oppose the motion. The motion was heard on November 14, 2013. Having considered oral argument and the papers submitted by the parties, the Court GRANTS Plaintiffs' motion.
I. The 2013 Final Rule
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, the Court granted a preliminary injunction, enjoining Defendants from putting the regulation into effect without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such a period. Habeas Corpus Resource Ctr. v. United States Department of Justice , 2009 WL 185423, *10 (N.D. Cal.). On February 5, 2009, Defendants solicited further public comment on its proposed certification process. Defendants thereafter proposed to retract the 2008 regulation pending the completion of a new rulemaking process. See 75 Fed. Reg. 29, 217 (May 25, 2010). On November 23, 2010, the Defendants published a final rule retracting the 2008 regulations. See 75 Fed. Reg. 71, 353 (Nov. 23, 2010).
On March 3, 2011, the DOJ published a notice of proposed rulemaking for a new certification process. 76 Fed. Reg. 11, 705. The comment period closed on June 1, 2011. On February 13, 2012, the DOJ then published a supplemental notice soliciting public comments on five contemplated changes. 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. The Final Rule provides:
§ 26.22 Requirements.
The Attorney General will certify that a State meets the requirements for certification under 28 U.S.C. 2261 and 2265 if the Attorney General determines that the State has established a mechanism for the appointment of counsel for indigent prisoners under sentence of death in State postconviction proceedings that satisfies the following standards:
(b) The mechanism must provide for appointment of competent counsel as defined in State standards of competency for such appointments.
(1) A State's standards of competency are presumptively adequate if they meet or exceed either of the following criteria:
(i) 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. But 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; or
(ii) Appointment of counsel meeting qualification standards established in conformity with 42 U.S.C. 14163(e)(1) and (2)(A), if the requirements of 42 U.S.C. 14163(e)(2)(B), (D), and (E) are also satisfied.
(2) Competency standards not satisfying the benchmark criteria in paragraph (b)(1) of this section will be deemed adequate only if they otherwise reasonably assure a level of proficiency appropriate for State postconviction litigation in capital cases.
78 Fed. Reg. at 58, 183. The "standards established in conformity with 42 U.S.C § 14163(e)(1) and (2)(A)" referred to in section 26.22(b)(1)(ii) are provisions of the Innocence Protection Act (IPA). They call for maintenance of a roster of qualified attorneys, specialized training programs for attorneys providing capital case representation, monitoring of the performance of attorneys who are appointed and their attendance at training programs, and removal from the roster of attorneys who fail to deliver effective representation, engage in unethical conduct, or do not participate in required training. 42 U.S.C. §§ 14163(e)(2)(B), (D), and (E).
Section 26.23 of the Final Rule provides the process for a state's certification:
(a) An appropriate State official may request in writing that the Attorney General determine whether the State meets the requirements for certification under § 26.22 of this subpart.
(b) Upon receipt of a State's request for certification, the Attorney General will make the request publicly available on the Internet (including any supporting materials included in the request) and publish a notice in the Federal Register-
(1) Indicating that the State has requested certification;
(2) Identifying the Internet address at which the public may view the State's request for certification; and
(3) Soliciting public comment on the request.
(c) The State's request will be reviewed by the Attorney General. The review will include consideration of timely public comments received in response to the Federal Register notice under paragraph (b) of this section, or any subsequent notice the Attorney General may publish providing a further opportunity for comment. The certification will be published in the Federal Register if certification is granted. The certification will include a ...