Harbison v. Bell – Oral Argument – January 12, 2009

Media for Harbison v. Bell

Audio Transcription for Opinion Announcement – April 01, 2009 in Harbison v. Bell

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John G. Roberts, Jr.:

We’ll hear argument this afternoon in Case 07-8521, Harbison v. Bell.

Ms. Chavis.

Dana C. Hansen Chavis:

Mr. Chief Justice, and may it please the Court: This case is about a logical reading of the statute’s plain language, and section 3599(a)( 2) that’s printed on page 1 of the blue brief provides that when a State death row inmate seeks 2254 relief, he shall be represented by counsel.

He shall be appointed counsel by the Federal court.

And that representation is governed by subsection (e).

Subsection (e) that is on page 2a of our blue brief defines the scope of counsel’s representation and also divides that representation by two clauses that begin with the word “shall”.

This case is controlled by the second (e).

And that clause says that counsel shall also represent the defendant in proceedings for executive or other clemency as may be available to him.

And we know that this means State clemency proceedings because of the words “available” and the words “or other”.

For a 2254 petitioner or defendant like Mr. Harbison, the only type of clemency that is available to him is State clemency, and in order to give effect to the words “or other” that were used by Congress, we know that that must refer to State clemency because the only type of clemency that the Federal Government provides is executive clemency.

Now, not only is the interpretation of this statute controlled by the plain language, but this interpretation makes sense because — and it makes sense that Congress would provide for continuous representation for capital defendants in that it fills a need, a gap in representation; it’s efficient; and it also helps to improve the reliability of the death penalty as it’s administered in this country.

John G. Roberts, Jr.:

Your interpretation would make all of the provisions of subsection (e) applicable in State proceedings, so long as there’s been a 2254 petition filed.

Dana C. Hansen Chavis:

No, Your Honor.

And if I may, I would like to discuss the structure of subsection (e).

And I believe your question would go to the very first 3 of subsection (e), and that would — in that counsel that is appointed under (a)( 2)

“shall represent the defendant in subsequent stages of judicial proceedings. “

And for the (a)( 2) lawyer, the lawyer appointed under subsection (a)( 2), that stage of proceeding that the representation begins with is described in (e) as “all available post-conviction process”.

And then it goes on for the remainder of the statute, together with the applications–

John G. Roberts, Jr.:

I’m sorry.

Where are you reading, the first part, “available post-conviction process”?

Dana C. Hansen Chavis:

–Right.

It begins at the (e).

John G. Roberts, Jr.:

Well, that doesn’t modify what comes before it, does it?

New trial, appeals?

In other words, if — if at the end of the habeas proceeding, things start all over, then presumably the appointed counsel represents the defendant throughout all those new proceedings?

Dana C. Hansen Chavis:

No, Your Honor.

With respect to the habeas attorney, the representation would begin with the “all available post-conviction process”.

If that attorney did obtain relief for the defendant or the Federal court granted relief for the capital defendant and that case were to return to State court, then of course we’re not talking about continued representation of the Federal habeas counsel because–

Antonin Scalia:

Why not?

Dana C. Hansen Chavis:

–Well, because, Your Honor–

Antonin Scalia:

That would be a subsequent — a subsequent stage of available judicial proceedings, his retrial in State courts.

Dana C. Hansen Chavis:

–Your Honor, the retrial and the trial proceedings that’s referred to in subsection (e), those are duties of counsel appointed under (a)( 1) of the statute, which is on page 1a, which would be trial counsel for those defendants charged with a Federal capital crime.

We would not — a habeas lawyer would not participate in a retrial because — for a few reasons.

The first reason is because of the statute and the structure of the statute, which sets out the ordinary course of the capital case, so that there’s nothing subsequent, no duties listed here that are a subsequent stage for habeas counsel.

Samuel A. Alito, Jr.:

I don’t see how that’s possibly a plain reading of the statutory language.

You started out by saying you’re relying on the plain meaning of the statutory language.

Dana C. Hansen Chavis:

Yes, Your Honor.

Samuel A. Alito, Jr.:

How do you get that out of the statutory language of (e)?

Dana C. Hansen Chavis:

It’s in context with the whole of the statute.

With respect, we look at (a)( 1) and (a)( 2) for that context for subsection (e).

So subsection–

Samuel A. Alito, Jr.:

So now you’re out of the plain language of (e), and you’re looking at the context of the whole statute.

Dana C. Hansen Chavis:

–Your Honor, I would submit that looking at the context of the whole statute is in accordance with also looking at the plain language used by Congress.

And we do look at — at the statute as a whole in order to inform our definition–

Samuel A. Alito, Jr.:

What’s your answer to the plain language of (e)?

That was your prime — that was the argument you started out with, that this fell under the plain language of (e).

Dana C. Hansen Chavis:

–Yes.

Samuel A. Alito, Jr.:

How do you explain under the plain language of (e) why — how you avoid the result that once habeas counsel is appointed in Federal court, the counsel has to appear in all of these other proceedings?

Dana C. Hansen Chavis:

Yes–

Samuel A. Alito, Jr.:

New trial in State court, et cetera.

Dana C. Hansen Chavis:

“In all subsequent stages of judicial proceedings. “

is exactly what subsection (e) states.

Ruth Bader Ginsburg:

But you are including then.

Suppose that the result of the Federal habeas is that the State — relief is granted unless the State retries the defendant in X number of days.

And your reading, I think that the — the appointed counsel on the Federal habeas would be responsible for representation in all available post-conviction process, and that would be an available post-conviction process.

Dana C. Hansen Chavis:

Respectfully, Your Honor, the State retrial would be an entirely new case that would not fall under “all available post-conviction process”.

Ruth Bader Ginsburg:

What would?

Then, tell me what would fall under “all available post-conviction process” in — in addition to clemency and competency proceedings.

Dana C. Hansen Chavis:

Your Honor, 2254 or 2255 proceeding.

Now, the — together with appropriate applications for stays and appropriate motions and procedures.

Dana C. Hansen Chavis:

Now, that is a part of this first clause in subsection (e) that, under appropriate circumstances, may permit the federally appointed lawyer to return to State court if deemed appropriate by the Federal court.

If the Federal court found that an issue in the Federal habeas case needed to be exhausted in order to aid that judge’s determination of the habeas petition, then it would be appropriate for the Federal judge to say: Counsel, please return to State court and exhaust this issue.

However–

Anthony M. Kennedy:

Well, but he couldn’t find it’s inappropriate, could he?

If you’re again talking about the plain language of the statute, I don’t see there’s much room for the district judge to say: Well, now, I’m not going to say that you have to participate in further State post-conviction proceedings.

This is unexhausted claim.

It seems to me under your reading of the statute, the appointed counsel, say, in an unexhausted claim instance, would have to, under the statute, represent the defendant in further State collateral post-conviction proceedings.

Dana C. Hansen Chavis:

–Well, Your Honor, again the key here is that Congress used the word “appropriate”, and that’s an easy legal standard for the Federal judge to determine.

There — the statute does not say State postconviction process or a State post-conviction case.

It indicates appropriate motion or procedures.

So that would be for the Federal judge–

John G. Roberts, Jr.:

I’m sorry.

I’m sure I’m missing something here, because the statute does say “all available post-conviction process”.

Dana C. Hansen Chavis:

–Yes, Your Honor, and — and I would submit that that is a reference to — if we look at (a)( 2) — excuse me — where it says, the very first line, post-conviction proceeding under 2254 and ’55 — so that describes — all available post-conviction process describes the 2254 or 2255 proceedings.

John G. Roberts, Jr.:

So you’re just saying a new trial because you succeed on habeas is not postconviction process?

Dana C. Hansen Chavis:

No, Your Honor, not just by a plain definition of that.

John G. Roberts, Jr.:

Is it — well then, if you look up earlier in the statute, it says,

“shall represent the defendant throughout every subsequent stage of available judicial proceedings. “

Dana C. Hansen Chavis:

Yes.

John G. Roberts, Jr.:

Why — why doesn’t it fall under that?

Dana C. Hansen Chavis:

Yes.

Well, that’s the key, “subsequent stage”.

And — and a retrial would not be a subsequent stage.

That would be an entirely new case back in the State court.

And there’s also a second reason why Federal habeas counsel would not represent the defendant in any retrial or resentencing, and that would be–

Samuel A. Alito, Jr.:

Why would it not be a subsequent stage of available judicial proceedings?

Dana C. Hansen Chavis:

–I’m sorry, Your Honor?

Samuel A. Alito, Jr.:

Why is it not a subsequent stage of available judicial proceedings?

Dana C. Hansen Chavis:

Well, under the — the structure of the statute, there’s nothing subsequent–

Samuel A. Alito, Jr.:

Without using the words (e), and I’m still struggling to understand what you’re doing with the plain language of (e).

Dana C. Hansen Chavis:

–Okay.

Well, there is another reason why Federal habeas counsel would not do a State retrial, and that’s because under (a)( 2), the — the clause or the part of the statute that does provide for the appointment of counsel, if there is already counsel available, then that appointment clause would not be triggered.

If we look at (a)( 2), which is on page 1a, the trigger for the appointment of counsel is that we have an indigent defendant.

It says a defendant who is — this is four lines down — a defendant who is or becomes financially unable to obtain adequate representation shall be appointed a lawyer.

In a retrial, the State must provide trial counsel–

John G. Roberts, Jr.:

No, no, no.

That doesn’t — that doesn’t work.

The language you just quoted is simply to say when you get somebody appointed.

Dana C. Hansen Chavis:

–Yes.

John G. Roberts, Jr.:

You’re financially unable, so you get somebody appointed.

Then you go back and say that person shall represent you through every subsequent stage.

Dana C. Hansen Chavis:

Yes–

John G. Roberts, Jr.:

It doesn’t say that, oh, if you suddenly get somebody else appointed, you know, then you can — then he doesn’t have that obligation.

Dana C. Hansen Chavis:

–Your Honor, I would submit that — that these circumstances that trigger the appointment do carry through the appointment process in that even if you look at the language used by Congress, it says

“any defendant who is or becomes financially unable. “

So Congress was anticipating–

Samuel A. Alito, Jr.:

What if the remand — what if the remand is for State post-conviction review, and there is no attorney available under State law for State postconviction review?

Dana C. Hansen Chavis:

–Yes, Your Honor, then we would be looking again at the first clause of subsection (e), and we would be looking at the language used by Congress, “any appropriate motions and procedures”.

And again, appropriateness is a easy legal standard applied by the courts.

The Federal judge overseeing the case could determine whether — whether returning for that State post-conviction process is appropriate.

It would be just like a Federal judge determining that in order to aid its decision-making process, it needs to certify a question back to the State court.

Antonin Scalia:

Excuse me.

I have lost you.

Where — where is the “appropriate”?

I don’t see any “appropriate”.

Dana C. Hansen Chavis:

Your Honor, “appropriate”–

Antonin Scalia:

It says,

“shall represent the defendant throughout every — every subsequent stage of available judicial proceedings. “

Dana C. Hansen Chavis:

–Yes, and then it describes those stages.

Antonin Scalia:

Yes, right.

Dana C. Hansen Chavis:

And then we are at four lines up from the bottom.

Antonin Scalia:

Right.

Dana C. Hansen Chavis:

I’m sorry.

Five lines up from the bottom.

Antonin Scalia:

Well, this is “and all”–

Dana C. Hansen Chavis:

“And other appropriate”–

Antonin Scalia:

–Right.

Dana C. Hansen Chavis:

–“motions”.

Antonin Scalia:

“Other appropriate”, but as far as what’s covered by the first clause is concerned, “appropriate” doesn’t apply to that.

Dana C. Hansen Chavis:

Your Honor–

Antonin Scalia:

Represent throughout every subsequent stage of available proceedings, including pretrial, trial, sentencing, motions for a new trial, appeals, applications for writ of certiorari.

There is no “appropriate” with any of that.

Dana C. Hansen Chavis:

–Yes, sir.

Well, Your Honor, that is–

Antonin Scalia:

And shall also represent —

“and other appropriate motions and procedures. “

but that doesn’t cover the earlier stuff.

Dana C. Hansen Chavis:

–Your Honor, if we were looking at the possibility of exhausting a claim in State court, then we wouldn’t be — none of this first part of — of (e) would apply.

That wouldn’t be a pretrial proceeding.

That wouldn’t be a trial.

That wouldn’t be a sentencing.

What that would come under would be after “and all available post-conviction process”, that would be described as “other appropriate motions and procedures”.

Anthony M. Kennedy:

But you — you would interpret “all available post-conviction process” as meaning Federal?

Dana C. Hansen Chavis:

The habeas proceeding.

Yes, Your Honor.

John G. Roberts, Jr.:

Well, then why don’t we interpret the clemency provision the same way, as being limited to Federal?

Dana C. Hansen Chavis:

Well, because, Your Honor, Congress doesn’t use the word “Federal” here, and if we were to interpret it as–

John G. Roberts, Jr.:

Within the use of “Federal”, what we were just talking about.

Dana C. Hansen Chavis:

–Well, that’s correct, Your Honor; however, when we look at post-conviction process in (e), we have the context of (a)( 2), that talks about postconviction proceeding under section 2254 and 2255.

John G. Roberts, Jr.:

I don’t know why you just didn’t take the position and say, yes, it applies to all these provisions.

John G. Roberts, Jr.:

That doesn’t — that doesn’t seem to me a — to doom your position at all.

Once you have somebody have appointed who helps you on the Federal habeas — presumably they do a lot of work, they get up to speed on everything — they ought to represent you through the next stage of available proceedings.

Dana C. Hansen Chavis:

Well, Your Honor — and that’s true.

The interpretation of this first clause of subsection (e) doesn’t impact the second — the interpretation of the second clause.

It says specifically counsel shall represent the defendant in those clemency proceedings that are available to him.

John G. Roberts, Jr.:

Well, you see why — I mean, if you say, well, the first part is implicitly only Federal, that makes it very hard for you to argue that the second part is not also implicitly only Federal.

Dana C. Hansen Chavis:

Respectfully, Your Honor, I would disagree, and — and that’s because the words are different, used by Congress.

Congress is very explicit in stating other clemency as may be available to the defendant.

There’s no way that that can be interpreted as Federal clemency.

There is no other Federal clemency; there’s only executive–

Anthony M. Kennedy:

I just want to make clear what your position is.

Federal determination on habeas corpus, that — that there are unexhausted claims ordered returned to the State court.

Is the appointed counsel required under the statute to represent the defendant in the State court, further post-conviction proceedings?

Dana C. Hansen Chavis:

–No, and for two reasons.

Anthony M. Kennedy:

Do you have to take that position?

But that is your–

Dana C. Hansen Chavis:

Your Honor, I don’t have to.

Anthony M. Kennedy:

–But that is your position.

Dana C. Hansen Chavis:

Your Honor, that is my position.

However, of course, again, the interpretation of this first part of this statute is separate from an interpretation of the clemency clause.

But for two reasons the answer would be no to that question, because the statute — number one, (e) does not specifically set that out as a subsequent stage of judicial proceedings.

Okay?

What it does instead is it states appropriate motions or procedures.

So it would be discretionary.

On a case-by-case basis, the district judge could determine whether he believed it was appropriate, non-abusive, to return to State court to exhaust a claim.

Antonin Scalia:

Well, but — but, you know, it — it mentions trial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of cert. And then in the next clause, it just says, “and all available post-conviction process”.

Now, you — you would acknowledge that — that going back to exhaust claims that hadn’t been exhausted before the State courts would be post-conviction process or not?

Dana C. Hansen Chavis:

Not with respect to subsection (e).

And ordinarily an exhaustion proceeding is not a subsequent stage.

Ordinarily, if that’s what the — the statute contemplates, is the ordinary course–

Antonin Scalia:

“Subsequent stage” does not apply to this clause.

I’m reading the clause “and all available post-conviction process”.

Dana C. Hansen Chavis:

–Yes, Your Honor.

Antonin Scalia:

Okay?

Dana C. Hansen Chavis:

The very beginning of (e) indicates

“each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including. “

–and then it recites all of those stages.

Antonin Scalia:

Right.

John Paul Stevens:

But if it did not have the “including” phrase, if it just stopped there, would it then include proceedings necessary to exhaust the State remedies?

I’m a little unclear why you think it does not include necessary — proceedings necessary to exhaust State remedies.

Dana C. Hansen Chavis:

I’m sorry, Your Honor, if I wasn’t clear.

It may include.

It does not require.

It may include going back to State court to exhaust.

John Paul Stevens:

But why doesn’t the word “shall” require it?

Dana C. Hansen Chavis:

Because, Your Honor, we’re — when we’re talking about an exhaustion proceeding or returning to State court, it can only fit under this part of (e) that says that it would be an appropriate motion or procedure.

That’s the only thing that you could define a State proceeding under in this — in this statute.

John G. Roberts, Jr.:

If you step back and look at the structure, it seems to me unusual that your interpretation would be correct.

It seems to me that it would be more likely that Congress wanted this counsel to continue on in State proceedings, trials.

The clemency thing seems a little bit more removed.

It’s a different — different argument — you know, we’re guilty, but show us mercy — than what may well be the same sort of argument on the subsequent State proceeding as was raised in the Federal habeas.

I mean, if — if I were writing this, I would want them to continue in the subsequent State proceedings before I’d want them to continue — before I’d want to have them represent the defendant in clemency.

Dana C. Hansen Chavis:

And I understand that, Your Honor, but I think also, if we look at the representation as it does occur in the real world, we have the AEDPA, we have this Court’s decisions that — that structure the — the capital litigation so that State court exhaustion normally comes before the Federal habeas process.

But, again, there are these two separate clauses.

The first goes to judicial proceedings; the second clause goes to — to nonjudicial proceedings, including competency, because this Court in Ford v. Wainwright indicated that we need not have a judicial proceeding, a judicial determination of competency.

So Congress has separated out competency and separated out clemency, knowing that — that those are stages of a capital case that come at the very end of the Federal habeas, that the Federal habeas counsel would be in the best position to represent that defendant–

Ruth Bader Ginsburg:

So let’s go back to the earlier question.

So what else fits under “all available post-conviction process” other than competency and clemency?

What else?

Dana C. Hansen Chavis:

–Your Honor, competency and clemency are in their own “shall” clause, mandatory clause, in and of themselves.

Dana C. Hansen Chavis:

They’re not included in the — the post-conviction process.

Ruth Bader Ginsburg:

Right.

So but what — what would be included?

Dana C. Hansen Chavis:

The post-conviction process would refer to anything in the 2254, the 2255.

For example, it — it could be the discovery motions; it could be — it could be motions in aid of an evidentiary hearing; it could be motions in aid of an appeal.

So that — that’s a descriptor.

Samuel A. Alito, Jr.:

But only things in Federal court.

Dana C. Hansen Chavis:

Your Honor, that is it my reading of — of 2254, 2255.

John Paul Stevens:

Does that seem reasonable that Congress would have — suppose you had a real complicated case with five or six issues in it, and they find out one issue is not exhausted.

The capital case has been around for 2 or 3 years.

Did Congress think, well, you’ve got to go on your own when you go back to the State court now and exhaust that one claim?

Dana C. Hansen Chavis:

No, Your Honor.

I don’t think Congress contemplated that, and that’s why I think they included this language “appropriate motions and procedures” to encompass a return to State court where–

John Paul Stevens:

Now, where is that language again, “appropriate motions and”–

Dana C. Hansen Chavis:

–It’s four lines up from the — or five lines up from the — the bottom, the end of that line — “appropriate”–

John Paul Stevens:

–No, but that’s in the next — next clause.

Dana C. Hansen Chavis:

–That’s in the first “subsequent stage” clause.

John Paul Stevens:

But why does — why does that limit the interpretation that — of the words “subsequent stage” —

“throughout every subsequent stage of available judicial proceedings? “

And isn’t the State collateral proceeding which is necessary to exhaust a remedy fall right within that language?

Dana C. Hansen Chavis:

Your Honor, it may.

John Paul Stevens:

What?

Dana C. Hansen Chavis:

It may.

However, in our — my reading of the statute, when we look at the subsequent stage, exhaustion ordinarily comes before Federal habeas.

It would be, you know, an unordinary situation where you would have to go back and exhaust.

But I believe that the statute contemplates that with “appropriate motions and procedures”.

But of course, Congress could have contemplated that the Federal lawyer continue to represent the defendant in exhaustion proceedings.

Back when the statute was — was created, Congress was looking at the States and looking at the fact that States were not providing counsel for capital defendants in these cases.

And Congress–

Samuel A. Alito, Jr.:

But I thought it was your position that it didn’t apply in that situation.

Dana C. Hansen Chavis:

–I’m sorry, Your Honor?

Samuel A. Alito, Jr.:

I thought it was your position that it did not apply in that situation.

Dana C. Hansen Chavis:

That it wasn’t mandatory.

It doesn’t require.

What is says is appropriate–

Samuel A. Alito, Jr.:

So you think it’s discretionary.

Dana C. Hansen Chavis:

–Yes.

Samuel A. Alito, Jr.:

The court can — as a matter of discretion, can order the — the counsel who’s appointed to represent the — the petitioner in the habeas to go back and handle the exhaustion of a claim in State court.

Dana C. Hansen Chavis:

Absolutely, Your Honor.

Just like this Court in Rhines v. Weber said, it’s discretionary as to whether this — as to whether the Federal judge is going to determine that we are going to hold this case in abeyance.

We’re going to stay this case while we — while counsel goes back to exhaust some claims.

Antonin Scalia:

Ms. Chavis, what do you do about(a)( 1)?

That also does not — is not limited by its terms–

Dana C. Hansen Chavis:

Correct.

Antonin Scalia:

–to Federal prisoners.

Would you argue that — it says,

“in every criminal action in which a defendant is charged with a crime which may be punishable by death. “

Dana C. Hansen Chavis:

It does, Your Honor.

Antonin Scalia:

“A defendant who is or becomes financially. “

–so even in the original State trial, he’s entitled to a Federal defendant.

Is that right?

Dana C. Hansen Chavis:

No, Your Honor.

For–

Antonin Scalia:

Why not?

It doesn’t — it isn’t limited to Federal trials.

Dana C. Hansen Chavis:

–Well, Your Honor, in this case, in (a)( 1), we would — we — because (a)( 1) sets out the factors that trigger the appointment of counsel, we have to have a defendant who’s charged with a capital crime, who’s indigent, and who otherwise doesn’t have a lawyer.

Antonin Scalia:

Right.

It says he

“shall be entitled to the appointment of one or more attorneys. “

Dana C. Hansen Chavis:

That’s correct.

Dana C. Hansen Chavis:

But, Your Honor, for a State capital trial, for a State capital direct appeal, the States do provide counsel, and Congress would know that that States would have to provide counsel under–

Antonin Scalia:

So what?

I mean, it — it still is — is unqualified.

And — and part of your argument — it’s not your only argument, but a large part of your argument is since it is unqualified in — in (e), the last clause, it has to include State.

Well, you could say the same about (a)( 1).

Dana C. Hansen Chavis:

–Your Honor, certainly last clause of (e) is unqualified and unambiguous; however, (a)( 1), there is a qualifier in that it says “unable to obtain adequate representation”.

Antonin Scalia:

Oh, but — but–

Dana C. Hansen Chavis:

If — if a State provides representation, then you don’t have a federally appointed counsel.

Antonin Scalia:

–Oh, so if the State doesn’t provide counsel, the Federal Government will provide it, and the States can — can recede from their obligation to provide counsel.

Right?

Dana C. Hansen Chavis:

Your Honor, I think this Court would have problems under Gideon–

Antonin Scalia:

Why?

Dana C. Hansen Chavis:

–if the States do not–

Antonin Scalia:

Why?

So long as he has counsel, we don’t care who pays for it.

Dana C. Hansen Chavis:

–Well–

John G. Roberts, Jr.:

It says “adequate representation”.

And then later on it says the lawyers we appoint here have to have 5 years’ experience, 3 years’ experience in felony trials.

I think that’s a lot better than most of the attorneys who are going to be appointed under the State system.

So I would say, look, this statute itself recognizes that this person you have appointed under the State system is not adequate.

They say you’ve got to have 5 years/3 years.

So I want one of those.

Dana C. Hansen Chavis:

–Well, Your Honor, again, the answer to that question under (a)( 1) is that you would not get federally appointed counsel when you have counsel available to you otherwise.

And — and that simply is the fact that the — the States do provide for counsel.

Antonin Scalia:

What — what about expert services?

I think most States don’t provide for that.

Dana C. Hansen Chavis:

Well, Your Honor–

Antonin Scalia:

The Federal Government will provide expert — compensation for the use of experts when the States won’t?

Dana C. Hansen Chavis:

–That — that is–

Antonin Scalia:

Under (a)( 1).

Dana C. Hansen Chavis:

–That is part of (a)( 1), and it’s part of (a)( 2).

However, you still have to have — you still have to have those — those three circumstances present.

Antonin Scalia:

Sure.

Dana C. Hansen Chavis:

And I believe that that — that still would not — the States, if they provide any sort of resources at all, and if they provide a lawyer, then certainly the trigger for appointment isn’t — isn’t available under (a)( 1).

Antonin Scalia:

It seems — it seems to me, counsel, that the mere fact that it doesn’t mention Federal explicitly is — is not a very strong argument unless you’re going to take the position that even (a)( 1) applies to Federal and State.

And — and really what you’re — the only strong string to your bow is that it says “executive or other clemency”.

And — and there — there seems to be no Federal clemency except executive clemency, I guess.

I guess.

Can Congress declare something that has been a crime no longer a crime and set the guy loose?

I don’t know.

Is that clemency?

Dana C. Hansen Chavis:

Your Honor, it’s the Constitution that determines the — the Federal authority for clemency.

So Congress cannot effect that.

The — the only type of clemency–

Antonin Scalia:

Well, it says — it says the President can.

It doesn’t say Congress can’t.

Does it say Congress can’t?

Dana C. Hansen Chavis:

–No, Your Honor, it does not say that.

Antonin Scalia:

I didn’t think so.

John G. Roberts, Jr.:

You put a lot of weight on — I mean, the — the problem arises because Congress did not specify whether it was limited to Federal or State.

And yet you’re saying they were — what they clearly meant to do when they said “executive or other clemency” was to signal implicitly that it must cover State because there’s no other kind of clemency.

It’s — it’s kind of a real round-about way to make that point, isn’t it?

Dana C. Hansen Chavis:

Well, Your Honor, if–

John G. Roberts, Jr.:

Somebody is not going to sit there and say, oh, we put “other” in because we know that in the Federal system it’s only executive, but in the State system there might be others.

Dana C. Hansen Chavis:

–Your Honor–

John G. Roberts, Jr.:

That guy wouldn’t suddenly say, well, maybe we should say this is meant to cover the State system.

Dana C. Hansen Chavis:

–Your Honor, these are the words that Congress used.

They know that the — that the States provide for forms of clemency other than executive clemency.

We know that — that Congress specifically stated they wanted the defendant to be represented in that clemency proceeding that’s available to him.

And in — in these cases, like this 2254 case–

Antonin Scalia:

And we know that they read this text carefully before they voted for it.

Right?

Dana C. Hansen Chavis:

–Yes, Your Honor.

Antonin Scalia:

We don’t know any of that.

Dana C. Hansen Chavis:

Your Honor–

Antonin Scalia:

These are all assumptions.

That’s all.

Dana C. Hansen Chavis:

–The — the language of the statute is the best intent of Congress.

Yes, Your Honor.

If I have any time remaining, I’d like to reserve it for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Jay.

William M. Jay:

Mr. Chief Justice, and may it please the Court: Section 3599 authorizes federally funded representation only in the three categories of proceedings specified in subsection (e).

At least three distinct aspects of the statute’s text and structure show that the only proceedings included are Federal proceedings before a Federal officer.

First, as Justice Scalia pointed out during the previous argument, the word (a)( 1).

Several other terms in the statute, including the phrase “every criminal proceeding”, plainly refer to Federal proceedings and Federal proceedings only.

Congress plainly saw no need to include the modifier “Federal” to make that limitation manifest.

Second, the statute requires that appointed attorneys have Federal qualifications based on experience practicing in Federal court, and it requires that Federal judges exercise significant oversight of the attorney’s representation.

Both these Federal requirements for qualifications and Federal requirements for oversight make sense only if the proceedings that the — that the qualifications and oversight pertain to are Federal ones.

Third, if Petitioner were right that–

John Paul Stevens:

May I just make sure I understand your position?

Does (a)( 2) authorize a Federal judge to appoint counsel for a — a person on death row under a State death conviction under 2254 or 2255?

William M. Jay:

–For that — for that habeas — for that person’s Federal habeas petition–

John Paul Stevens:

Yes.

William M. Jay:

–it requires the appointment of — of a Federal habeas attorney qualified to practice in Federal court.

John Paul Stevens:

So he — he is entitled to a lawyer in the — in the Federal collateral review of a State death penalty case?

William M. Jay:

In the Federal review, that’s correct, Justice Stevens.

John Paul Stevens:

And what in the statute limits the scope of that review?

William M. Jay:

Well, subsection (e) limits the scope of that review, Justice Stevens.

It specifies the types of proceedings that the attorney is — is permitted to — permitted and, indeed, required–

John Paul Stevens:

But — but you agree that (e) applies to State prisoners.

William M. Jay:

–We agree that (e) sets out the scope of services to be provided by the appointed attorney during the 2254 proceeding.

John Paul Stevens:

In the — for a State prisoner in a Federal collateral proceeding?

William M. Jay:

We agree — we agree with that, Your Honor, because we think that term “proceedings” each time–

John Paul Stevens:

And — and what, then, in that proceeding does the word “clemency” refer to?

Is that clemency by the President of the United States?

William M. Jay:

–We think, Your Honor, that a habeas petitioner who’s coming to Federal court under section 2254 has available to him no proceedings for clemency because the term “proceedings”–

John Paul Stevens:

Even though the statute says so in so many words.

William M. Jay:

–Well, it’s — the menu of services, if you will, set out in subsection (e) applies both to lawyers who are appointed under (a)( 1) who are doing work in Federal court for Federal defendants facing a Federal capital charge and also for attorneys appointed under (a)( 2) who are representing habeas petitioners under section 2254.

Because the term (e) refers to Federal proceedings before a Federal officer.

A 2254 petitioner has available to him no proceedings for executive or other clemency.

That person can obtain the services that are — that are available to him under subsection (e), which includes representation throughout the 2254 proceedings.

John Paul Stevens:

Now, supposing, on the eve of execution, he wanted to apply for a stay of execution, he’d be entitled to representation before a Federal judge.

Right?

William M. Jay:

That’s correct, Your Honor.

John Paul Stevens:

But what if the Federal judge says, you have to — under our practice you can’t get a Federal stay without first exhausting your attempt to get a State stay.

Could he represent the defendant applying for a — in the State court for a stay of execution in that situation?

William M. Jay:

Subsection (e) would not authorize that, Your Honor.

John Paul Stevens:

So he’d have to get a separate counsel to — to go to the State court because — even though the Federal judge required him as a normal matter of practice to exhaust the State remedy under the very limited situation of a stay on the eve of execution.

William M. Jay:

Well, Your Honor, State courts also appoint counsel.

John Paul Stevens:

Well, I understand that.

William M. Jay:

There’s nothing–

John Paul Stevens:

But he would have no right to have his Federal lawyer get paid for doing that work?

William M. Jay:

–Would not get paid by the Federal Government for litigating a matter in State court that may have no connection to Federal law.

John Paul Stevens:

For litigating that — just for the — this, for the stay application on the eve of execution?

William M. Jay:

Well, Your Honor, I — it would not be a Federal judicial proceeding, and, therefore, it would not be covered–

John Paul Stevens:

Oh, I understand.

William M. Jay:

–by subsection (a)( 2).

John Paul Stevens:

But it comes in with the — the general language of “other appropriate motions and procedures”, and so forth.

That’s got to be tailored back to mean other appropriate motions and procedures in a Federal tribunal.

William M. Jay:

We — we think that the Federal limitation applies throughout the text of 3599.

John Paul Stevens:

You think that’s perfectly clear from the text of the statute?

William M. Jay:

I am sorry, Justice–

John Paul Stevens:

You think that’s perfectly clear from the text of the statute?

William M. Jay:

–Well, Your Honor, I think that the Federal limitation is apparent from a number of aspects of the statute, including the fact that Congress didn’t use the “Federal” modifier anywhere else in the statute.

John Paul Stevens:

And it could have used the “Federal” modifier very easily just by inserting the word “Federal” at appropriate places.

William M. Jay:

Well, if it had inserted the word “Federal” in some places and left it out in others, that might be probative intent — probative evidence that Congress intended the — the other instances to be Federal and State as well.

But we don’t have that here.

We have — we have terms that are clearly indicated to be Federal only in nature such as every criminal proceeding in (a)( 1).

John G. Roberts, Jr.:

You don’t doubt in the scenario Justice Stevens hypothesized that the Federal defender would, in fact, represent the person before the State court.

You are in an emergency stay situation.

He’s — he’s allowed to go to Federal court.

He does so.

The Federal judge says, you got to go back to State court.

There’s 12 hours left.

He’s not going to say, you know, get another lawyer.

He’s going to represent the person before the State court.

And I gather he can do that.

He’s just not going to get paid for that.

William M. Jay:

But the — subsection (e) doesn’t bar the lawyer from doing that.

And two points on that: There might be other sources of funding available; and indeed, the same lawyer who need not be a Federal defender — he may be a panel attorney appointed — in private practice appointed from the district court’s panel of available attorneys who meet the Federal qualifications.

John G. Roberts, Jr.:

So he presumably–

William M. Jay:

He may be appointed as well.

John G. Roberts, Jr.:

–is spending a huge amount of time and resources on this — in the nature of these proceedings, and you want to go back and say, all right, on this day you spent 6 hours redoing your papers that were filed before the Federal judge to file them before the State judge, and you don’t get paid the — whatever — how — what do CJA attorneys get paid these days?

William M. Jay:

In capital cases for fiscal year 2008, it’s $170 an hour.

John G. Roberts, Jr.:

So he goes back and says, look, you don’t get that.

You know, you get the $15,000 you spent in the last 10 days on this, but you don’t get the $810.

That — does it seem reasonable to impose that burden on the public defender?

William M. Jay:

Well, Your Honor–

John G. Roberts, Jr.:

Since you know as a practical matter, because of professional responsibility, that person is going to represent the defendant in the State court proceedings.

William M. Jay:

–Well, Your Honor, the limitations in subsection (e) are — are there for a reason, and it’s precisely because the State — the State post-conviction process that would become available under Petitioner’s reading of the statute is certainly not limited to a few hours spent on the eve of execution in State court.

It potentially could include returning to State court for any form of post-conviction process at any time after the Federal habeas application is filed.

Whether–

Stephen G. Breyer:

Would we have to reach that question here?

I mean, I don’t understand three things that you’ve said.

You’ve said that it says “Federal”.

I don’t see any place it says “Federal”.

It doesn’t use that word.

Then you say it doesn’t say “Federal and State”.

In my copy it does say “Federal and State”.

It talks about 2254 and 2255.

So if I just read this in English, it says that once you appoint the person, and it’s either State or Federal — it’s 2254 and 2255 — that person shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.

Q.E.D. End of the case.

All right, now why isn’t it?

William M. Jay:

–I think it isn’t, Justice Breyer, because 2254 is not a reference to proceedings in State court.

A 2254 proceeding is in Federal court.

It involves Federal constitutional issues in a Federal constitutional challenge to the legitimacy of the–

Stephen G. Breyer:

That’s right.

They’re referring to people who are under State death penalty or Federal death penalty.

And what it says is that they shall get a person to represent them in these later habeas proceedings.

And then it adds that that person — and no point quoting it again.

You heard what I just said.

It adds that that person will represent them in clemency proceedings.

Now, is there any reason for thinking that Congress — and contrary to some things mentioned, I believe that probably Congressman Conyers did read what he wrote.

He certainly referred to it enough in speeches, and those speeches make very clear to me that that’s what he had in mind, what it says.

Now, other people can read it differently, but — but I — I mean, I’ve read it.

I read the language.

What’s the answer?

Antonin Scalia:

I thought this was a Federal law.

Is this a Conyers law?

Antonin Scalia:

Is that what it is here?

Stephen G. Breyer:

He happened to be the person who wrote it, and it’s referred to in the Solicitor General’s brief.

And on page 21 — I took what you said, I went back and looked it up, just as you might have suggested I would by putting in the relevant citations.

Okay?

So having looked it up, as implicitly you suggested, I think Conyers knew what he said.

I think he did mean those words to say what it says, but you can convince me to the contrary.

That’s why I raise it.

William M. Jay:

–Well, I–

Antonin Scalia:

Did his colleagues know what he said?

Stephen G. Breyer:

Yes, they did.

John G. Roberts, Jr.:

I’m sorry.

Counsel, you lead.

[Laughter]

We direct our questions to counsel.

Stephen G. Breyer:

My experience in Congress is that the Members of Congress do know the kinds of things that they are voting on.

Maybe others have different experiences.

William M. Jay:

–Well, Your Honor, let me answer your point about Congressman Conyers first because I think that the suggestion in Petitioner’s brief is that Congressman Conyers was — had misinterpreted the text of his own amendment.

And as we have shown, the text of the amendment proposed by Congressman Conyers in the House and the text of the amendment proposed by Senator Levin in the Senate using the — using virtually the — the identical language, each of them provided no funding for–

Stephen G. Breyer:

I think you’re wrong about that.

The reason I think you’re wrong about that is that that language to which you refer is language that Congressman Conyers himself introduced in response to a bill by Representative Gekas, and in Representative Gekas’ bill he referred, just like this one, to both State defendants and to the Federal defendants.

And the purpose of Conyers’ amendment, which was to substitute for the Gekas amendment, was to extend, not to limit, what Gekas has done.

And he introduced lots of information, all of which referred almost uniquely to State defendants.

That’s then picked up in the Senate, and the Senate, which is Levin, is trying to do precisely what Conyers was trying to do in the House, which we know from the fact that he said it.

Now, I can’t find anything in that legislative history that supports the statement that you made on page 21, that this initially was meant to refer only to people under Federal sentence of death.

William M. Jay:

–Well, Your Honor, the text of Congressman Conyers’ amendment wiped out the Gekas amendment.

It replaced subsections (q)( 1) through (q)( 4) of the Gekas amendment.

Subsection (q)( 4) is what you are referring to, referring to 2254 petitioners.

Congressman Conyers replaced that with his — with a lengthy piece of legislation that is the predecessor of what appears in the statute today, and it made no provision whatsoever for 2254 petitioners, even those appearing in Federal court.

Now, your previous question to me, which I didn’t get — which I’d like to come back to, is about the 2254 representation.

When a State prisoner comes to Federal court raising a constitutional challenge to his conviction in a 2254 proceeding, there there’s a direct Federal interest.

William M. Jay:

You know, Federal rights are at stake, and it makes sense that Congress was providing counsel for the vindication of those Federal rights.

That is not so with the clemency proceedings before a State governor, which are a matter of grace, they don’t turn on Federal issues, and they don’t deal with an inmate under a Federal sentence of death.

John G. Roberts, Jr.:

What do you do with “other”?

I mean, there is no “other” clemency for Federal defendants.

Right?

It’s just executive clemency?

William M. Jay:

We think, Your Honor, that the purpose of that phrase, which was added, as I — as I tried to explain in my previous answer, was added at a time when there was no — there was no funding available for a 2254 petitioner.

We think the purpose of that language is to be as capacious as possible when a Federal defendant seeks clemency, and that — recognizing that the proceedings for clemency in which counsel might be helpful might include proceedings that don’t take place before the Chief Executive himself, and there are a couple of examples — throughout history, Presidents have enlisted the assistance of various people, including individuals who don’t work for the executive branch.

David H. Souter:

Well, I understand that, but it’s still executive clemency.

William M. Jay:

We agree, Your–

David H. Souter:

When — when the — when the clemency decision is made, it’s not being made by these other people who are helping out the President.

It’s — it’s being made by the executive.

William M. Jay:

–We don’t disagree with that at all, Justice Souter, but we think that the phrase “or other” was simply Congress’ attempt to make sure that proceedings before these other officers were–

Antonin Scalia:

Should the Constitution be amended, it would cover that.

Right?

William M. Jay:

–Should the Constitution be amended to permit — to permit legislative clemency, I think that — I think that that is right.

But at any rate, the phrase “or other”, we don’t think that it’s a sub silentio or at least a very subtle way of indicating State clemency because, as we’ve pointed out in our brief, the existence of non-executive clemency in the States is — in every State that has the death penalty, clemency is a matter — is a decision made by the governor or his appointees or other executive officials.

John Paul Stevens:

Mr. Jay, would you comment on this general reaction I had to — when I read the statute?

I had the impression that most lawyers appointed under this statute would be to represent defendants in State execution cases, and there — there are a few cases where they’re Federal death penalty cases, but not very many across the whole spectrum.

Am I right about that?

William M. Jay:

In terms of the numbers of clients, yes, you are, Your Honor.

John Paul Stevens:

Yes.

So the case is primarily dealing with the representation of State defendants in capital proceedings, and the number of cases in Federal proceedings where at the last minute there’s a plea for executive clemency is very rare.

And you think this particular provision we’re debating here was really intended just to take care of the rare case where a Federal defendant is on death row seeking executive clemency, and not even to consider all the cases in which — in State — that originate in State trials, where there’s a lot of applications for executive clemency.

You think it was intended to focus on that very narrow category.

William M. Jay:

Well, we think the entire statute is intended to focus on when — when Federal rights and Federal interests are at stake in the administration of the death penalty.

And in the clemency context, because clemency does not actually — does not involve the vindication of a Federal right or a — a constitutional right at all, that the number of instances where the clemency process actually involves such a Federal right is–

John Paul Stevens:

You say it–

William M. Jay:

–limited to the category–

John Paul Stevens:

–There are occasionally Federal constitutional questions and sometimes arguments made in Federal clemency — I mean, in State clemency proceedings and Federal clemency proceedings.

William M. Jay:

–There are sometimes such arguments made but there is no such thing as a Federal constitutional right to clemency, and indeed the governor or the President–

John Paul Stevens:

But there’s arguably a Federal right, a constitutional right, to a fair proceeding in a clemency application.

William M. Jay:

–Well, there is a — in a capital clemency proceeding, the Court has recognized a — a limited due process right, but that is not the sort of right that would be vindicated in a — in a habeas proceeding at all.

Antonin Scalia:

Well, Mr. Jay, I — I assume that (a)( 1), which provides for the appointment of counsel to conduct the trial in a — in a capital case, would not have very much application either, would it?

William M. Jay:

That’s right, Your Honor; (a)( 1) applies only in Federal proceedings.

Antonin Scalia:

Only in Federal capital cases, of which there are very, very few.

William M. Jay:

That’s correct, Your Honor.

So many of the — many of the provisions in (e), even on Petitioner’s reading which places great reliance on the “subsequent stage” language, many of these provisions, such as pretrial proceedings, trial, sentencing, would apply only to the limited number of Federal death penalty defendants.

We don’t think that–

Anthony M. Kennedy:

Is the government’s principal concern in this case the possibility, the potential, assuming the Petitioner prevails, of appointment of counsel in State post-conviction collateral proceedings, i.e., when there are unexhausted claims?

Apparently the Sixth Circuit en banc addressed this.

And in your brief you indicate that there’s a number of additional claims left.

Is — is that the principal thrust of your concern, rather than clemency?

William M. Jay:

–It is the principal thrust of our concern.

I think that’s fair to say, Justice Kennedy.

And that’s because the term (e), we think that either that that’s limited to Federal proceedings each time it appears or it’s not each time it appears.

So–

Anthony M. Kennedy:

Do you think there’s no way to interpret the statute so that it could include State clemency proceedings but only Federal post-conviction review proceedings in judicial — before judicial tribunals?

William M. Jay:

–We don’t see a way to have a Federal limitation before judicial proceedings and not have it before clemency proceedings.

Antonin Scalia:

Well, sure.

You could — you could put all your weight on the “other” — “executive or other” — and you could say that’s the only provision where it’s apparently clear from the text that — that State proceedings were included.

Assuming you are wrong, that there are non-executive State clemency proceedings — you are sure that there aren’t?

William M. Jay:

Well, our position, Your Honor, is that in every State with the death penalty, the clemency decision is made either by the — in most cases, by the governor or by gubernatorial appointees or by other executive officials.

And the Petitioner has suggested that gubernatorial appointees, for that purpose, might be “other”.

But, there is — there are no — been able to find no instances of, for example, legislative clemency in a capital case.

That is limited.

There are constitutional provisions that the Tenth Circuit relied on to assert that there is such an institution of legislative clemency.

That’s limited to treason against the State, a noncapital felony or mostly noncapital felony that we — we can’t find a treason against the State prosecution since the 1940s.

David H. Souter:

Of course, it would have made sense for Congress to use “other” as a way of referring to the States simply because it would have been a matter of indifference to Congress whether a State process was executive or was other in some way, in effect just leaving the issue open as — as an irrelevance.

William M. Jay:

I think if your premise, Justice Souter, were — is right, that Congress intended to fund — fund proceedings on both levels, then I — I suspect that that’s right, that it would be a matter of indifference to Congress which form the State clemency process took.

William M. Jay:

But we think that Congress intended to fund only those proceedings in which there are Federal rights or Federal interests at stake, and State clemency proceedings do not meet that qualification.

And the–

David H. Souter:

Okay, but that — that still leaves you with the question that the — what the — what the words “or other” can possibly refer to, given the present state of Federal law, Federal constitutional law, unless they refer to State proceedings.

William M. Jay:

–Well, the phrase is — the phrase is ambiguous.

We’ve turned to legislative history to partially resolve that ambiguity, because, as — as we have set out in our brief and I alluded to earlier, they were added — they were added at a time when funding wasn’t contemplated for 2254 proceedings at all.

Even if that — even if that weren’t the case, we would think that because of the impact on the Federal — State balance that would — that would result from funding these State — State proceedings, that that’s not the kind of clear statement that would qualify.

And so I mentioned before, one of the two possibilities that we see for what “or other” might mean, which would be–

Antonin Scalia:

Excuse me.

What do you mean by the Federal-State balance?

Because this is funding somebody to argue against the interests of the States, isn’t it?

William M. Jay:

–It is, Your Honor.

Antonin Scalia:

I mean, assuming the State has convicted somebody, you are arguing against the State.

William M. Jay:

That’s true, Your Honor.

Antonin Scalia:

And the Federal Government is funding that.

William M. Jay:

The Federal Government would be funding that.

We see another instance in which there is a — an impact on the Federal-State balance, which is the fact that — that if, on Petitioner’s reading, the attorney must return — must go to State court or go into State proceedings and continue the representation there, they still answer to the Federal judge, who supervises their appointment, supervises their qualifications, and determines whether and to what extent they will be paid.

And of critical importance, the Federal judge determines when the attorney will be permitted to withdraw.

And the Federal judge may not permit such a withdrawal, unless and until the Federal judge can find another attorney who meets the same qualifications for the Federal appointment.

So you would have, on Petitioner’s reading, an attorney appointed by a Federal court who would go into State judicial proceedings and would be unable to ask the State tribunal before whom he or she was appearing for permission to withdraw from the engagement.

He or she would have to return to the Federal court for that permission.

We see that as a direct — direct infringement on the State tribunal process.

John Paul Stevens:

May I just be clear on — on one thing on your position, Mr. Jay?

Is it your view that the Federal judge may not allow the lawyer to do anything in — in an unexhausted claim, or does he have some discretion?

William M. Jay:

Well, I think — this statute, Your Honor, doesn’t deal with discretion.

It deals with “shall”.

And — so we don’t think that it’s possible under this statute.

It is possible.

Now, there is another provision in Federal court for the appointment of counsel, the Criminal Justice Act, 18 U.S.C. 3006(A), and that provision, which was in existence long before this statute, used to permit discretionary appointment of counsel in 2254 cases.

And it — it does contain a provision for some ancillary representation.

It is possible that an attorney might be able to invoke that provision, which has its own legislative history–

John Paul Stevens:

What is the government’s position on that issue?

William M. Jay:

–I don’t — I don’t think we have a — have a position on that issue, because it–

John Paul Stevens:

It seems to me that issue would arise more often than the issue we’re fighting about in this case.

William M. Jay:

–It — it might, Your Honor, because the Criminal Justice Act applies to noncapital cases as well.

But I have not seen it litigated.

And so, I don’t think that we’ve taken a position on it.

But that is — that is a potential source for discretionary funding.

But the suggestion that subsection (e) permits some exercise of discretion because of the inclusion of

“and other appropriate motions and procedures. “

I don’t think that works in this case to cabin the necessary implications of Petitioner’s reading, because the three categories of proceedings are judicial proceedings, competency proceedings, and proceedings for executive or other clemency.

And each of the examples, from pretrial proceedings down through applications for stays of execution and other appropriate motions and procedures, fall into the category of judicial proceedings.

It’s our position that those are to be Federal proceedings, not proceedings in State court.

Anything that — that is on that list, from — again from pretrial proceedings down through — at least through all available post-conviction process, that’s — that’s not discretionary, and we don’t think that the district court could decide that, even though something were available post-conviction process, it was not to be funded because the district court deemed it not to be appropriate.

And many of the filings that a habeas counsel might wish to make in State court, if the Petitioner’s reading were adopted, would fall under the category of available post-conviction process, a successive writ of habeas corpus or a writ of coram nobis, such as the — the one that Petitioner litigated in the Tennessee Court of Criminal Appeals while its Federal habeas proceeding was pending.

Ruth Bader Ginsburg:

But all this is dependent upon the defendant showing that he is financially unable to obtained adequate representation.

And if he is in the State court, then that’s the answer to it.

It’s the only when he isn’t.

And I thought in the clemency cases, particularly, there was no funds in State court.

William M. Jay:

There are some funds on — on the State level, and I’d like to come back to how Tennessee handles that in a moment.

But as a — as a general answer to your question, the statute does not make clear that if Petitioner can obtain counsel at no cost to himself, that he’s no longer eligible for Federal counsel under this provision, because he, after all, would still be indigent.

And I think the situation that occurred here in the Tennessee courts highlights the — the difficulty that would be raised by creating a — by permitting funding for State proceedings.

The Tennessee post-conviction defender is authorized by statute to represent inmates under a sentence of death in post-conviction and clemency proceedings in State court, and he has discretion over the clemency portion.

The post-conviction defender in this case declined to use his — to use his resources to represent Petitioner in the clemency proceedings, because he — he determined that he didn’t have the resources and he was focusing on other cases.

So, at least as a matter of Tennessee law, that that option was available to him, but it’s not been suggested that he is not himself financially unable to obtain counsel.

So, in — in any instance like that in which there is — there are, in some circumstances, State-funded counsel available, I think you would set — you would create a powerful incentive for the State to say it wishes to go second, that allowed the Federal — allow Federal funding to come first and State funding to come second, and for the Federal Government to respond in like measure.

Antonin Scalia:

And that’s the government’s position, that under this provision, even if — even if State funding — well, you say State isn’t covered anyway.

William M. Jay:

Right.

Our position, Justice Scalia, is–

Antonin Scalia:

Assuming State funding is covered, assuming representation in the State is covered, it does seem to be the case that the test of whether you get some — some Federal lawyer appointed is not whether you don’t have a State lawyer, but rather whether you can pay for counsel.

Right?

William M. Jay:

–Whether you as a personal matter–

Antonin Scalia:

Can pay.

William M. Jay:

–are financially unable.

Antonin Scalia:

That’s strange.

William M. Jay:

And the — the test for appointment is also based on when the — at the time when the defendant is or becomes financially unable, there’s no reference in the statute to when — to the defendant becoming financially able again.

It has been interpreted in some instances to permit revisiting that financial ability decision, but in circumstances unlike what we are discussing here, where the State provides free counsel.

John G. Roberts, Jr.:

Counsel, you don’t really think the fact that this provision was recodified helps your argument at all, do you?

William M. Jay:

Well, it doesn’t hurt, Your Honor, and we do think that it helps because–

John G. Roberts, Jr.:

When I see that argument, particularly in a gray brief, that strikes me as tantamount to a confession of error.

William M. Jay:

–Well, I’m certainly not here to confess to error, Your Honor.

We — we do think that it — that it helps our argument because, to the extent that there’s any ambiguity or there’s any doubt left in the Court’s mind, I think the fact that Congress chose to use the same words again–

John G. Roberts, Jr.:

You were earlier resisting the notion that the particular legislative history here showed anything because of how broadly it may have been familiar, but there’s no evidence at all that when Congress recodified this language, it was in fact aware of the different court of appeals decisions you cite.

Right?

William M. Jay:

–Other than the general presumption that this Court applies in these ratification cases, that’s right, Your Honor.

We can’t — we can’t point to a particular committee report or colloquy.

The — the term 3599(e).

Clemency proceedings, judicial proceedings, and competency proceedings, we submit, are made clear by the text and structure of the statute to refer only to Federal proceedings.

Adopting Petitioner’s reading, even if — even though in this case it refers only to a clemency proceeding, would inevitably lead to Federal funding for — for any proceeding on the State level that meets one of the descriptions set out in subsection (e).

Clemency would be a particularly poor candidate for such funding because a clemency decision before a State governor, which may indeed be initiated before the — before the inmate comes to Federal court for a habeas petition, implicates no Federal rights and implicates no Federal interests.

For those reasons we submit the judgment of the court of appeals should be affirmed.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Jay.

Ms. Chavis, you have a minute left.

Dana C. Hansen Chavis:

Thank you, Your Honor.

The word (e) is given meaning by Congress by the words that Congress used, and when it says “proceedings for clemency”, it means proceedings for that clemency that’s available to the defendant.

Subsection (a)( 2) put 2254 defendants and 2255 defendants on the same footing, and if we don’t give effect to the “or other” language or the “available” language in the clemency clause, then we’re rendering those words meaningless.

We’re — and we’re saying that — that Congress somehow sub silentio read out 2254 defendants from the clemency clause.

In addition, Your Honor, I’d just like to point out that giving a lawyer for an — giving an attorney for a person on death row to present a case for clemency before the clemency decisionmaker is not an intrusion on the States.

If it were, we would see the States lined up here in opposition to our interpretation of the case, and they have not done that.

In particular in this case, the State of Tennessee takes no position, and at least four other times this — this statute has been litigated.

Dana C. Hansen Chavis:

Other death penalty States have taken no position.

So there simply is no intrusion in — in providing a person a lawyer, and we have heard from 11 governors representing 7 other death penalty States that say it’s very important for them to be fully informed when they make this life-or-death decision when they’re presented with these capital clemency petitions.

John G. Roberts, Jr.:

How often is clemency granted in Tennessee?

Dana C. Hansen Chavis:

Your Honor, clemency has been granted one time since Furman that I am aware of, Your Honor.

John G. Roberts, Jr.:

One time in the last how many decades?

Dana C. Hansen Chavis:

That would be the last 20 or 30, Your Honor.

We’ve just recently started having executions.

If I — if I may just add one other factor Your Honor.

Clemency was granted four times in 2008 throughout the country.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.