Habeas Corpus Res. Ctr. v. U.S. Dep't of Justice

• Decision Date: 23 March 2016
• Docket Number: No. 14–16928.,14–16928.
• Citation: 816 F.3d 1241
• Parties: HABEAS CORPUS RESOURCE CENTER ; Office of the Federal Public Defender for the District of Arizona, Plaintiffs–Appellees, v. UNITED STATES DEPARTMENT OF JUSTICE; Loretta E. Lynch, Attorney General, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

816 F.3d 1241

HABEAS CORPUS RESOURCE CENTER ; Office of the Federal Public Defender for the District of Arizona, Plaintiffs–Appellees,

v.UNITED STATES DEPARTMENT OF JUSTICE; Loretta E. Lynch, Attorney General, Defendants–Appellants.

No. 14–16928.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 2015.

Filed March 23, 2016.

Samantha Lee Chaifetz (argued), Melissa N. Patterson, and Michael Raab, United States Department of Justice, Civil Division, Washington, D.C., for Defendants–Appellants.

Marc Shapiro (argued), Orrick, Herrington & Sutcliffe LLP, New York, NY; George E. Greer, Orrick, Herrington & Sutcliffe LLP, Seattle, WA; Shannon Christine Leong, Catherine Y. Lui, and Darren S. Teshima, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, for Plaintiffs–Appellees.

Kent S. Scheidegger, Criminal Legal Foundation, Sacramento, CA, for Amici Curiae Marc Klaas and Edward G. Hardesty.

Before: DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN, and CARLOS T. BEA, Circuit Judges.

OPINION

BEA

, Circuit Judge:

Title 28, chapter 154 of the United States Code ("Chapter 154") permits the "fast-tracking" of federal habeas cases for capital prisoners from states that offer competent counsel to indigent capital prisoners during state postconviction proceedings. See 28 U.S.C. §§ 2261

–2266. "Fast-tracking" principally affects habeas corpus petitioners because it contracts from one year to six months the period in which petitioners may file a timely federal habeas petition. See id. § 2263(a). Before a state can avail itself of Chapter 154's "fast-tracking" provisions, it must request and receive certification from the Attorney General¹ that it "has established a mechanism for providing counsel in postconviction proceedings" to indigent capital prisoners.

Id. §§ 2261(b)(1)

, 2265(a)(1)(A). In 2013, the Attorney General finalized regulations to implement a certification procedure, pursuant to 28 U.S.C. § 2265(b), and the plaintiffs then brought this action, which raises numerous challenges to the regulations, which challenges are based upon the Administrative Procedure Act ("APA"). On summary judgment, the district court sustained most of the plaintiffs' challenges, found the regulations arbitrary or capricious in several respects, and enjoined the regulations from going into effect. We vacate the district court's decision and remand with instructions to dismiss this case because the plaintiffs, two governmental organizations that provide legal representation to capital defendants and prisoners, did not have standing to bring this action. Furthermore, we decline the plaintiffs' request for a limited remand to allow their clients an opportunity to intervene; the Attorney General has not yet made any certification decisions, and, thus, challenges to the procedures and criteria set forth in the regulations are not yet ripe for review.

I

A. Background on Chapter 154 and the Final Regulations

Although the federal Constitution requires that counsel be appointed for indigent criminal defendants when a conviction results in imprisonment, see Alabama v. Shelton, 535 U.S. 654, 661–62, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002)

, this requirement does not extend, as a federal constitutional matter, to postconviction collateral attacks on a conviction or sentence in state or federal court, see Pennsylvania v. Finley, 481 U.S. 551, 555–59, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Chapter 154, which was added by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides procedural benefits to states that voluntarily appoint counsel to represent indigent capital prisoners during state postconviction proceedings. See 28 U.S.C. §§ 2261 –2266.²

For a state to "opt in" to Chapter 154, it must request and receive certification from the Attorney General that it "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." Id. § 2265(a)(1)(A)

; see id. § 2261(b)(1). For the state to invoke Chapter 154 in a particular capital prisoner's federal habeas case, it must have appointed counsel to represent the prisoner during state postconviction proceedings pursuant to its capital-counsel mechanism, unless the prisoner validly waived counsel, retained his own counsel, or was found not indigent. Id. § 2261(b)(2).³

If Chapter 154 applies to a federal habeas case, then, among other things, (1) the capital prisoner can secure an automatic stay from execution while his state postconviction and federal habeas proceedings are ongoing, see id. § 2262; (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, compare id. § 2244(d) (general rule), with id. § 2263(a) (Chapter 154 rule); and (3) the federal courts must give priority status to the habeas case and resolve it within the time periods specified by Chapter 154, see id. § 2266

.

Chapter 154 requires the Attorney General to certify state capital-counsel mechanisms that comply with the requirements of Chapter 154, and such certification decisions are subject to de novo review in the U.S. Court of Appeals for the D.C. Circuit. Id. § 2265(a), (c). The Attorney General must also promulgate regulations to implement such certification procedure. Id. § 2265(b). After engaging in notice-and-comment rulemaking, the Attorney General finalized such regulations in September 2013 ("Final Regulations"). See 78 Fed.Reg. 58,160 (Sept. 23, 2013)

.⁴

The Final Regulations establish a procedure for certifying whether a state's mechanism is adequate for the appointment of professionally competent counsel to represent indigent capital prisoners during state postconviction proceedings. The Final Regulations require a state to request certification; the Attorney General must post the state's request on the Internet, solicit public comments, and review such comments during the certification process. See 28 C.F.R. § 26.23

. If the Attorney General certifies that a state's capital-counsel mechanism conforms to the requirements of Chapter 154 and the Final Regulations, she also must determine the date on which the state established its mechanism. See 28 C.F.R. § 26.23(c) -(d) ; see also 28 U.S.C. § 2265(a)(1)(B). The certification is effective as of the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may apply retroactively. 28 U.S.C. § 2265(a)(2) ; 28 C.F.R. § 26.23(c).

The Final Regulations also set forth substantive criteria that a state's capital-counsel mechanism must meet to be certified. Consistent with 28 U.S.C. § 2261(c)

-(d), a state's mechanism must require a court of record to appoint counsel to represent an indigent capital prisoner in state postconviction proceedings unless the capital prisoner competently rejected the offer of counsel or was not indeed indigent. 28 C.F.R. § 26.22(a). If the court appoints counsel, the attorney must not have represented the prisoner at trial, unless the attorney and prisoner expressly agree otherwise. See id. Under the Final Regulations, a state's capital-counsel mechanism must include competency and compensation standards for counsel appointed pursuant to the mechanism. The Final Regulations provide two competency benchmarks, as well as a catchall provision for mechanisms that "otherwise reasonably assure a level of proficiency appropriate for State postconviction litigation in capital cases." Id. § 26.22(b)(2)

. Similarly, the Final Regulations provide four compensation benchmarks, as well as a catchall provision for mechanisms that are "otherwise reasonably designed to ensure the availability for appointment of counsel" satisfying the competency standards. Id. § 26.22(c)(2). A state's mechanism must also authorize payment of "the reasonable litigation expenses of appointed counsel." Id. § 26.22(d) ; accord 28 U.S.C. § 2265(a)(1)(A).

B. Procedural History

After the Attorney General issued the Final Regulations in 2013, the Habeas Corpus Resource Center ("HCRC") and the Office of the Federal Public Defender for the District of Arizona ("Arizona FPD") (collectively, "Defender Organizations"), commenced this action, in which they sought to block the Final Regulations from taking effect. Their complaint alleged four causes of action under the APA: (1) the Attorney General had failed to give adequate notice regarding certain aspects of the Final Regulations; (2) the Attorney General had failed to respond to significant public comments made about the Final Regulations during notice-and-comment rulemaking; (3) the certification process prescribed by the Final Regulations is arbitrary or capricious because it is exempt from the APA's notice-and-comment-rulemaking requirements and does not allow for meaningful public participation; and (4) the substantive criteria set forth in the Final Regulations are arbitrary or capricious because they do not provide sufficient competency standards and fail to establish the factual bases on which the Attorney General will make certification decisions.⁵

The Defender Organizations are governmental organizations that counsel capital defendants and prisoners and represent capital prisoners in federal habeas proceedings.⁶ According to declarations submitted by the Defender Organizations to the district court, vagueness in the Final Regulations prevents the Defender Organizations from making reasonable predictions as to whether and how the Attorney General will certify state capital-counsel mechanisms and, thus, whether Chapter 154 may apply to their clients' federal habeas cases. The Defender Organizations declared that, as a result, they must make immediate strategic and resourcing decisions, such as "whether to commit limited attorney time and financial resources," whether...