Chapter 6, § 680: Clemency
Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 6: Federal Death Penalty and Capital Habeas Corpus Representations
A new appointment for clemency representation is not necessary since, under 18 U.S.C. § 3599(e), each attorney appointed to represent the defendant for habeas corpus proceedings under 28 U.S.C. § 2254, unless replaced by similarly qualified counsel, "shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant."
(a) Motions to withdraw from the clemency representation should be brought in the federal district court where the habeas corpus matter was filed.
(b) Upon granting a motion to withdraw, unless the defendant is represented by similarly qualified counsel or representation is waived by the defendant, the court must appoint counsel to represent the defendant for any available clemency proceedings.
Upon appointment of counsel for habeas corpus proceedings brought under 28 U.S.C. § 2254, the district court should issue appointed counsel two CJA payment vouchers (Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court Appointed Counsel)); one designated for the habeas corpus proceeding and one designated for a potential clemency proceeding.
All attorney compensation (Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court Appointed Counsel)) and investigative, expert, or other services vouchers (Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services)) pertaining to the clemency representation should be submitted to the district court, regardless of whether the habeas corpus case is on appeal at the time.
(a) Consistent with § 640, courts are encouraged to require counsel appointed in 28 U.S.C. § 2254 proceedings to submit a proposed initial clemency budget for court approval that will be subject to modification in light of facts and developments that emerge as the case proceeds.
(b) The district court, in consultation with counsel, should determine when the clemency budget should be submitted — early in the habeas corpus proceedings, or at the beginning of the clemency work. To allow sufficient time for clemency preparation, budgeting should occur well in advance of final resolution of the case in the courts.
Appx 6A Recommendations Concerning the Cost and Quality of Defense Representation (Updated Spencer Report, September 2010) (pdf)
Last substantive revision (Transmittal 07-012) May 21, 2019
Last revised (rate increases and minor technical changes) February 25, 2021