Reform of Federal Intervention in State Proceedings Act of 1991

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S 148 IS
102d CONGRESS
1st Session
S. 148
To reform procedures for collateral review of criminal judgments, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
January 14 (legislative day, JANUARY 3), 1991
Mr. THURMOND (for himself, Mr. HATCH, Mr. DECONCINI, Mr. D'AMATO, Mr. HELMS,
Mr. GRASSLEY, Mr. SIMPSON, Mr. DOMENICI, Mr. SYMMS, Mr. GRAMM, Mr. MCCAIN,
and Mr. NICKLES) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
A BILL
To reform procedures for collateral review of criminal judgments, and for
other purposes.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled, That this Act may be cited as the
  `Reform of Federal Intervention in State Proceedings Act of 1991'.
  SEC. 2. Section 2244 of title 28, United States Code, is amended by adding
  at the end thereof the following new subsections:
  `(d) When a person in custody pursuant to the judgment of a State court
  fails to raise a claim in State proceedings at the time or in the manner
  required by State rules of procedure, the claim shall not be entertained in
  an application for a writ of habeas corpus unless actual prejudice resulted
  to the applicant from the alleged denial of the Federal right asserted and--
  `(1) the failure to raise the claim properly or to have it heard in State
  proceedings was the result of State action in violation of the Constitution
  or laws of the United States;
  `(2) the Federal right asserted was newly recognized by the Supreme Court
  subsequent to the procedural default and is retroactively applicable; or
  `(3) the factual predicate of the claim could not have been discovered
  through the exercise of reasonable diligence prior to the procedural default.
  `(e) A one-year period of limitation shall apply to an application for
  a writ of habeas corpus by a person in custody pursuant to the judgment
  of a State court. The limitation period shall run from the latest of the
  following times:
  `(1) the time at which State remedies are exhausted;
  `(2) the time at which the impediment to filing an application created by
  State action in violation of the Constitution or laws of the United States is
  removed, where the applicant was prevented from filing by such State action;
  `(3) the time at which the Federal right asserted was initially recognized
  by the Supreme Court, where the right has been newly recognized by the
  Court and is retroactively applicable; or
  `(4) the time at which the factual predicate of the claim or claims presented
  could have been discovered through the exercise of reasonable diligence.'.
  SEC. 3. Section 2253 of title 28, United States Code, is amended to read
  as follows:
`Sec. 2253. Appeal
  `In a habeas corpus proceeding or a proceeding under section 2255 of this
  title before a circuit or district judge, the final order shall be subject
  to review, on appeal, by the court of appeals for the circuit where the
  proceeding is had.
  `There shall be no right of appeal from such an order in a proceeding to
  test the validity of a warrant to remove, to another district or place for
  commitment or trial, a person charged with a criminal offense against the
  United States, or to test the validity of his detention pending removal
  proceedings.
  `An appeal may not be taken to the court of appeals from the final order
  in a habeas corpus proceeding where the detention complained of arises out
  of process issued by a State court, or from the final order in a proceeding
  under section 2255 of this title, unless a circuit justice or judge issues
  a certificate of probable cause.'.
  SEC. 4. Federal Rule of Appellate Procedure 22 is amended to read as follows:
`Rule 22
`HABEAS CORPUS AND SEC. 2255 PROCEEDINGS
  `(a) Application for an Original Writ of Habeas Corpus. An application for
  a writ of habeas corpus shall be made to the appropriate district court. If
  application is made to a circuit judge, the application will ordinarily be
  transferred to the appropriate district court. If an application is made to
  or transferred to the district court and denied, renewal of the application
  before a circuit judge is not favored; the proper remedy is by appeal to
  the court of appeals from the order of the district court denying the writ.
  `(b) Necessity of Certificate of Probable Cause for Appeal. In a habeas
  corpus proceeding in which the detention complained of arises out of process
  issued by a State court, and in a motion proceeding pursuant to section
  2255 of title 28, United States Code, an appeal by the applicant or movant
  may not proceed unless a circuit judge issues a certificate of probable
  cause. If a request for a certificate of probable cause is addressed to
  the court of appeals, it shall be deemed addressed to the judges thereof
  and shall be considered by a circuit judge or judges as the court deems
  appropriate. If no express request for a certificate is filed, the notice
  of appeal shall be deemed to constitute a request addressed to the judges
  of the court of appeals. If an appeal is taken by a State or the government
  or its representative, a certificate of probable cause is not required.'.
  SEC. 5. Section 2254 of title 28, United States Code, is amended by
  redesignating subsections `(e)' and `(f)' as subsections `(f)' and `(g)',
  respectively, and is further amended--
  (a) by amending subsection (b) to read as follows:
  `(b) An application for a writ of habeas corpus in behalf of a person in
  custody pursuant to the judgment of a State court shall not be granted
  unless it appears that the applicant has exhausted the remedies available
  in the courts of the State, or that there is either an absence of available
  State corrective process or the existence of circumstances rendering such
  process ineffective to protect the rights of the applicant. An application
  may be denied on the merits notwithstanding the failure of the applicant
  to exhaust the remedies available in the courts of the States.';
  (b) by redesignating subsection `(d)' as subsection `(e)', and amending
  it to read as follows:
  `(e) In a proceeding instituted by an application for a writ of habeas
  corpus by a person in custody pursuant to the judgment of a State court,
  a full and fair determination of a factual issue made in the case by a
  State court shall be presumed to be correct. The applicant shall have the
  burden of rebutting this presumption by clear and convincing evidence.'; and
  (c) by adding a new subsection (d) reading as follows:
  `(d) An application for a writ of habeas corpus in behalf of a person in
  custody pursuant to the judgment of a State court shall not be granted
  with respect to any claim that has been fully and fairly adjudicated in
  State proceedings.'.
  SEC. 6. Section 2255 of title 28, United States Code, is amended by deleting
  the second paragraph and the penultimate paragraph thereof, and by adding
  at the end thereof the following new paragraphs:
  `When a person fails to raise a claim at the time or in the manner required
  by Federal rules of procedure, the claim shall not be entertained in a
  motion under this section unless actual prejudice resulted to the movant
  from the alleged denial of the right asserted and--
  `(1) the failure to raise the claim properly, or to have it heard, was the
  result of governmental action in violation of the Constitution or laws of
  the United States;
  `(2) the right asserted was newly recognized by the Supreme Court subsequent
  to the procedural default and is retroactively applicable; or
  `(3) the factual predicate of the claim could not have been discovered
  through the exercise of reasonable diligence prior to the procedural default.
  `A two-year period of limitation shall apply to a motion under this
  section. The limitation period shall run from the latest of the following
  times:
  `(1) the time at which the judgment of conviction becomes final;
  `(2) the time at which the impediment to making a motion created by
  governmental action in violation of the Constitution or laws of the United
  States is removed, where the movant was prevented from making a motion by
  such governmental action;
  `(3) the time at which the right asserted was initially recognized by the
  Supreme Court, where the right has been newly recognized by the Court and
  is retroactively applicable; or
  `(4) the time at which the factual predicate of the claim or claims presented
  could have been discovered through the exercise of reasonable diligence.'.
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