Capital Cases Under 28 U.S.C. § 2261. The § 2254 petitions brought by prisoners subject to capital sentences may be governed by a set of rules that supplement or, with respect to some procedures, replace the rules governing noncapital § 2254 petitions. These rules apply only if the state has met the requirements set forth in 28 U.S.C. § 2261. As of 2018, however, no state had satisfied all of the § 2261 requirements.

A state must meet the following elements of § 2261 before the rules apply. First, the Attorney General of the United States must certify that “[the] State has established a mechanism for providing counsel in postconviction proceedings as provided in [§] 2265.” Second, counsel must have been “appointed pursuant to that mechanism,” petitioner must have “validly waived counsel,” “retained counsel,” or have been “found not to be indigent.” Third, the state mechanism must “offer counsel to all State prisoners under capital sentence[s].” Finally, the mechanism “must provide for the entry of an order” either: (1) appointing counsel to represent the prisoner upon “finding that the prisoner is indigent and accepted the offer [of counsel] or is unable competently to decide whether to accept or reject the offer”; (2) “finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences”; or (3) “denying the appointment of counsel upon a finding that the prisoner is not indigent.”

Should a state meet the § 2261 requirements, the provisions of 28 U.S.C. §§ 2262-2264 would apply to a § 2254 petition. Under 28 U.S.C. § 2263, a § 2254 petition must be filed in the district court no later than 180 days after the conviction becomes final. This filing deadline may be tolled by filing: (1) a petition for certiorari with the Supreme Court for direct review of the state decision; (2) the first petition for state collateral relief; or (3) a motion for extension in the district court that would have jurisdiction over § 2254 habeas application that demonstrates “good cause” for failure to file petition within filing deadline. Under 28 U.S.C. § 2264, the district court may consider only claims that have been raised and decided on the merits in state courts. Such an extension, if granted, cannot exceed thirty days. The court may consider a claim that was not properly raised in state courts only if the failure to raise the claim properly was: (1) “the result of State action in violation of the Constitution or laws of the United States”; (2) “the result of the Supreme Court's recognition of a new Federal right that is made retroactively applicable”; or (3) “based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review.”

Under 28 U.S.C. § 2262, the order or warrant setting the petitioner's execution date is automatically stayed upon: (1) entry by a state court of an order under § 2261 (c); and (2) “application to any court that would have jurisdiction over any proceedings filed under [§] 2254.” The stay of execution expires upon: (1) failure to file a § 2254 petition within the time limits prescribed in § 2263; (2) waiver of the right to file a § 2254 petition; (3) failure to make a substantial showing of the denial of a federal right in a timely filed habeas petition; or (4) denial of habeas relief by the district court or at any subsequent stage of review. If the special rules for capital cases apply and one of these four conditions has occurred, a court cannot enter a stay of execution unless “the court of appeals approves the filing of a second or successive application under [§] 2244(b).”

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