Certification of Tennessee Capital Counsel Mechanism

DEPARTMENT OF JUSTICE Office of the Attorney General [Docket No. OLP180; AG Order No. 7011-2026] Certification of Tennessee Capital Counsel Mechanism AGENCY: Office of the Attorney General, Department of Justice. ACTION: Notice. SUMMARY: Federal law makes certain procedural benefits available to States in federal habeas corpus review of capital cases, where the Attorney General certifies that the State has established a postconviction capital counsel mechanism satisfying the requirements of chapter 154 of title 28 of the United States Code. The Attorney General certifies in this notice that Tennessee has such a mechanism, which was established on July 1, 1997. DATES: Pursuant to 28 U.S.C. 2265(a)(2), the effective date of the certification in this notice is July 1, 1997. FOR FURTHER INFORMATION CONTACT: Aaron Haviland, Counsel, Office of Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530; telephone (202) 514-4601. SUPPLEMENTARY INFORMATION: Certification: Chapter 154 of title 28, United States Code, provides special federal habeas corpus review procedures for state capital cases where (i) the Attorney General has certified that the State has established a counsel appointment mechanism for indigent capital defendants in state postconviction proceedings that meets the requirements stated in the chapter, and (ii) counsel was appointed pursuant to the certified mechanism, the defendant validly waived or retained counsel, or the defendant was not indigent. 28 U.S.C. 2261(b). Chapter 154 directs the Attorney General to determine, if requested by an appropriate state official, whether the State has established a qualifying mechanism for the appointment of postconviction capital counsel, the date on which the mechanism was established, and whether the State provides standards of competency for such appointments. Id. 2265(a)(1). Having considered the relevant statutes, rules, and policies in Tennessee, the application of the Tennessee Attorney General, and the public comments thereon, and exercising the authority conferred on me by 28 U.S.C. 2265, I determine and certify that Tennessee 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, including provision of standards of competency for the appointment of counsel in such proceedings, which satisfies the requirements of chapter 154. I further determine and certify that Tennessee had an established capital counsel mechanism satisfying the requirements of chapter 154 as of July 1, 1997, and that Tennessee has continuously had a capital counsel mechanism satisfying the requirements of chapter 154 since that date. This certification reflects no judgment or opinion whether Tennessee had a postconviction capital counsel mechanism satisfying the requirements of chapter 154 before that date. I. Procedural History Chapter 154 applies to cases arising under 28 U.S.C. 2254 brought by prisoners in state custody who are subject to a capital sentence if “(1) the Attorney General of the United States certifies that a State has established a mechanism for providing counsel in postconviction proceedings as provided in section 2265,” and “(2) counsel was appointed pursuant to that mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent.” 28 U.S.C. 2261(b). Where the chapter applies, federal habeas review is conducted in conformity with special provisions relating to stays of execution, the time available for federal habeas filing, the scope of federal habeas review, and the time for completing the adjudication of federal habeas petitions. Congress enacted chapter 154 as part of the Antiterrorism and Effective Death Penalty Act of 1996. See Public Law 104-132, sec. 107(a), 110 Stat. 1214, 1221-26. It was derived from a proposal developed in 1989, under the leadership of Justice Lewis F. Powell, to address the problem of protracted and repetitive litigation in capital cases and to fill a gap in representation for capital defendants at the stage of state postconviction review. Under chapter 154 in its original form, federal habeas courts determined the applicability of chapter 154's expedited federal habeas review procedures in the context of adjudicating federal habeas petitions filed by state capital defendants. Litigation relating to States' satisfaction of chapter 154's requirements ensued in various States, resulting in a substantial body of district court and court of appeals precedent interpreting chapter 154, as well as a related decision by the Supreme Court in Calderon v. Ashmus, 523 U.S. 740 (1998). In 2006, Congress enacted amendments that brought chapter 154 into its current form. See Public Law 109-177, sec. 507, 120 Stat. 250, 250-51 (codified in part at 28 U.S.C. 2265). The amendments transferred responsibility for determining a State's satisfaction of chapter 154's requirements from the courts to the Attorney General, subject to de novo review by the D.C. Circuit Court of Appeals. See 28 U.S.C. 2265. Under the revised scheme, the Attorney General, if requested by an appropriate state official, certifies whether the State has established a postconviction capital counsel mechanism satisfying the chapter's requirements, with exclusive review of the certification by the D.C. Circuit. See id. 2265(a), (c). The 2006 amendments also added a provision stating that “[t]here are no requirements for certification or for application of” chapter 154 “other than those expressly stated in this chapter.” Id. 2265(a)(3). The addition of this provision reflected Congress's concern that some courts had declined to apply chapter 154 for reasons other than a failure to satisfy the requirements of the statute. See 152 Cong. Rec. 2441, 2445-46 (2006) (remarks of Sen. Kyl); 151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake). Chapter 154 directs the Attorney General to promulgate regulations to implement the certification procedure. See 28 U.S.C. 2265(b). Attorney General Mukasey in 2008 issued an initial implementing rule for chapter 154. See 73 FR 75327 (Dec. 11, 2008). The rule generally tracked the statutory requirements, recognizing that 28 U.S.C. 2265(a)(3) precludes certification requirements other than those expressly stated in the chapter. See id. at 75327-39. Attorney General Holder in 2013 replaced the original rule with the current regulations (“2013 Regulations”), which prescribe additional requirements for certification. See 28 CFR 26.20-26.23; 78 FR 58160, 58160-84 (Sept. 23, 2013). On March 16, 2026, Attorney General Bondi published a notice of proposed rulemaking to rescind the requirements of the 2013 Regulations that are not expressly required by chapter 154 itself. See 91 FR 12525 (Mar. 16, 2026); see also Reconsidering State Procedures for Appointment of Competent Counsel in Postconviction Review of Capital Sentences, 50 Op. O.L.C. __ (Feb. 18, 2026). Notwithstanding this proposed rulemaking, the 2013 Regulations remain in effect and continue to guide the Attorney General's adjudication of States' requests for certification. Tennessee has requested that the Attorney General certify its capital counsel mechanism under chapter 154. The materials relating to Tennessee's request are available at www.justice.gov/olp/pending-requests-final-decisions. Tennessee initially requested chapter 154 certification by letter from its Attorney General, dated June 6, 2025. On August 7, 2025, the Department of Justice published a notice in the Federal Register inviting public comment on Tennessee's request for certification and providing a 60-day comment period. See 90 FR 38182 (Aug. 7, 2025). Three capital public defender offices in Tennessee submitted requests for extension of the comment period, which the Department denied. Two of these offices also sought a temporary restraining order to enjoin the Attorney General from deciding whether to certify Tennessee's capital counsel mechanism, but a district court denied their motion. See Order, Bland v. Bondi, No. 25-cv-3499 (D.D.C. Oct. 10, 2025), ECF No. 20. As an accommodation, the Department permitted the capital public defender offices to submit a late comment on Tennessee's certification request. The Department also received one other comment, submitted by the American Bar Association. II. Assessment of Tennessee's Mechanism Under Chapter 154 Chapter 154 directs the Attorney General, if requested by an appropriate state official, to determine (i) whether the State 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, and (ii) whether the State provides standards of competency for the appointment of such counsel. 28 U.S.C. 2265(a). Before turning to specific issues, I will discuss the significance of previous judicial interpretations of chapter 154. I will then examine whether Tennessee's mechanism for the appointment of counsel, its standards of competency, its mechanism for compensation, and its mechanism for the payment of reasonable litigation expenses comply with chapter 154 and the 2013 Regulations. A. Judicial Opinions Interpreting Chapter 154 In addressing Tennessee's request for certification, I do not write on a clean slate. Prior to 2006, the Attorney General was not involved in chapter 154 determinations, which were instead made by the federal courts in adjudicating individual habeas petitions filed by state prisoners. In 2002, for example, the Ninth Circuit concluded that Arizona had established a capital counsel mechanism satisfying chapter 154's requirements. See Spears v. Stewart, 283 F.3d 992, 1007-19 (9th Cir. 2002). The analysis in Spears may still be relevant to the extent that elements of an adequate state capital counsel mechanism now required by chapter 154 overlap with those required by chapter 154 at the time of that decision. For example, the Ninth Circuit clarified in Spears that capital-case litigation experience is not a prerequisite for appointment under chapter 154. See id. at 1013; see also Ashmus v. Calderon, 123 F.3d 1199, 1208 (9th Cir. 1997) (holding that postconviction litigation experience is not required under chapter 154). Other holdings in Spears —including with respect to counsel competency, compensation, and payment of reasonable litigation expenses—may also remain relevant as persuasive authority in assessing the capital counsel mechanisms of Tennessee and other States under the 2013 Regulations. See 85 FR 20705, 20708 (Apr. 14, 2020). In other respects, however, the pre-2006 case law may no longer be relevant because of changes in chapter 154. For example, in Ashmus v. Calderon, the Ninth Circuit held that California's capital counsel mechanism did not satisfy chapter 154 because its standards of counsel competency were not articulated in a statute or by a rule of the State's court of last resort. 123 F.3d at 1207-08. The 2006 amendments, however, rejected this “hypertechnical” reading of the statute and removed the language relied upon by the Ashmus court, thereby affording the States “flexibility on how to establish the mechanism.” 152 Cong. Rec. 2446 (remarks of Sen. Kyl). As another example, the Ninth Circuit concluded in Spears that Arizona's capital counsel mechanism satisfied chapter 154 but nevertheless declined to apply the expedited federal habeas procedures because of a delay in appointing counsel. See 283 F.3d at 1018-19. The 2006 amendments likewise repudiated this aspect of Spears, providing instead that there are no requirements for certification or for application of chapter 154 other than those expressly stated in the statute. See 28 U.S.C. 2265(a)(3); 152 Cong. Rec. 2446 (remarks of Sen. Kyl). Another important change in chapter 154 concerns whether I must undertake a case-specific review of the operation of a State's capital counsel mechanism. Public comments have supposed that I must deny certification if a State's mechanism is deficient in practice— e.g., if counsel are not appointed quickly after the conclusion of direct review or do not consistently provide high-quality representation after appointment. These comments claim support in pre-2006 decisions that held that the procedural benefits of chapter 154 are not available in a particular case if the State did not comply with the requirements of its capital counsel mechanism in that case. See, e.g., Spears, 283 F.3d at 1018-19 (failure to appoint counsel within the time required by state mechanism); Tucker v. Catoe, 221 F.3d 600, 604-05 (4th Cir. 2000) (failure to appoint counsel meeting state competency standards). Judicial decisions of this nature reflected the pre-2006 version of chapter 154, under which requests to apply chapter 154's procedures were presented to federal habeas courts in particular cases. In that posture, courts could consider both the general question of whether the State has established a mechanism satisfying chapter 154—an issue that was typically determined by examination of state laws and policies—and the specific question of whether counsel for the petitioner in a particular case had been appointed in compliance with that mechanism. Following the 2006 amendments to chapter 154, however, only the general question is assigned to the Attorney General. See 28 U.S.C. 2265. The case-specific question of whether counsel was appointed pursuant to the certified mechanism is reserved to the courts that adjudicate prisoners' habeas petitions. See 28 U.S.C. 2261(b)(2); 78 FR at 58162-63, 58165. Consequently, comments supposing that I must undertake a case-specific review of the operation of a State's capital counsel mechanism misapprehend the current division of labor under chapter 154 between the Attorney General and federal courts. See 85 FR at 20708, 20711-12; 78 FR at 58162-63; 73 FR at 75334-35. B. Appointment of Counsel 1. Appointment of Counsel and Chapter 154 Section 2265(a)(1) of title 28 directs the Attorney General to determine whether the State has established a mechanism for the appointment of counsel in state postconviction proceedings brought by indigent prisoners who have been sentenced to death. Tennessee's capital counsel mechanism satisfies this requirement. Tennessee Supreme Court Rule 13 provides for court-ordered appointment of postconviction counsel for indigent prisoners under sentence of death. The Tennessee Supreme Court adopted Rule 13 on April 3, 1997, and the rule took effect on July 1, 1997. See Tenn. Sup. Ct. Order (Apr. 3, 1997), https://perma.cc/CYQ8-VXRH; Tenn. Sup. Ct. Order (Apr. 10, 1997), https://perma.cc/7ZJ9-FEC6 (setting effective date of amendment to July 1, 1997). The substantive requirements of the relevant provisions have not changed in the years since Rule 13 was adopted. See Tenn. Sup. Ct. Order (June 1, 2004), https://perma.cc/YP6K-DTYS; Tenn. Sup. Ct. Order (June 1, 2004), App'x A, https://perma.cc/XTM3-JJM6; Tenn. Sup. Ct. Order (Oct. 4, 2024), https://perma.cc/6BX3-6KWN. Accordingly, Tennessee has continually satisfied the requirements of chapter 154 with respect to the appointment of counsel since July 1, 1997. 2. Appointment of Counsel and the 2013 Regulations The 2013 Regulations augment chapter 154's express requirements relating to appointment of counsel. Under the regulations, counsel must be provided in a manner that is “reasonably timely in light of the time limitations for seeking State and Federal postconviction review and the time required for developing and presenting claims in the postconviction proceedings.” 28 CFR 26.21. Tennessee satisfies the timeliness requirement. Upon the filing of an initial petition for postconviction relief, the trial court must complete a preliminary consideration of the petition within 30 days. See Tenn. Code Ann. sec. 40-30-106(a). At this stage, the trial court may dismiss the petition only if it is not in the court of conviction, is untimely, is successive, fails to show that the petitioner is entitled to any relief, or fails to show that the claims for relief were not waived or previously determined. See id. sec. 40-30-106(b), (f). If the petition is not dismissed, the trial court must enter a preliminary order directing further proceedings. See id. sec. 40-30-107(a). If the petitioner is not already represented by counsel, the trial court determines the petitioner is indigent, and the petitioner requests counsel, the trial court's preliminary order must also appoint counsel to represent the petitioner. See id. sec. 40-30-107(b)(1). In addition, the 2013 Regulations provide that the attorney appointed as postconviction counsel “may not be counsel who previously represented the prisoner at trial unless the prisoner and counsel expressly requested continued representation.” 28 CFR 26.22(a). Tennessee also satisfies this requirement. Tennessee Supreme Court Rule 13 provides that postconviction counsel “must not have previously represented the defendant at trial or on direct appeal in the case for which the appointment is made, unless the defendant and counsel expressly consent to continued representation.” Tenn. Sup. Ct. R. 13, sec. 3(h). 3. Specific Criticisms One public comment faulted Tennessee for requiring the appointment of two attorneys at the trial and appellate stages of capital cases but only one attorney at the postconviction stage. On this requirement, Tennessee law parallels federal law. See 18 U.S.C. 3005, 3599. Neither chapter 154 nor the 2013 Regulations subject Tennessee to a higher requirement than the requirement Congress has adopted for federal capital cases. Other comments objected that Tennessee does not require the appointment of counsel in successive postconviction proceedings or in proceedings for the testing or analysis of biometric identifiers— i.e., DNA and fingerprints. These objections are without merit because chapter 154 requires a mechanism for the appointment of counsel only in the initial collateral proceedings. It imposes no requirements in either successive collateral proceedings or proceedings related to the testing or analysis of biometric identifiers. See 28 U.S.C. 2261-66; 135 Cong. Rec. 24659 (Powell Committee Report: “Capital cases should be subject to one complete and fair course of collateral review in the state and federal system, free from the time pressure of impending execution, and with the assistance of competent counsel for the defendant. When this review has concluded, litigation should end.”); see also 73 FR at 75337; 78 FR at 58177. The text of section 2263 confirms that chapter 154 does not apply to successive collateral proceedings. Section 2263 imposes a 180-day time limit for seeking federal habeas relief that runs from the conclusion of state direct review. The limitation period is tolled upon the filing of “the first petition for post-conviction review or other collateral relief.” 28 U.S.C. 2263(b)(2). There is no provision for tolling the time limit for successive petitions for post-conviction relief. The scope of chapter 154 is limited to the initial round of state and federal postconviction review, and the statute does not create any right to appointed counsel for successive petitions. Chapter 154 likewise does not apply to motions related to postconviction biometric testing procedures. The chapter applies only to proceedings for collateral relief; it has no application to other proceedings occurring after conviction aside from collateral relief, such as biometric testing. See 73 FR at 75337; 78 FR at 58177. In addition, federal law leaves the appointment of counsel to represent an indigent defendant with a federal conviction in a motion for post-conviction DNA testing in the discretion of the court, see 18 U.S.C. 3600(b)(3), but extending chapter 154 to postconviction biometric proceedings would make the appointment of counsel in such proceedings mandatory for the States. Again, nothing in chapter 154 suggests that Congress intended to hold the States to a higher standard than the federal government. Finally, applying chapter 154 to postconviction biometric proceedings raises the same timing problem as applying the statute to successive collateral proceedings because the statute does not provide for tolling the 180-day time limit upon the filing of a motion for biometric testing. See 28 U.S.C. 2263. Another comment faulted Tennessee for not requiring that prisoners be notified of their right to replacement counsel under section 2261(e). Section 2261(e) provides that “[t]he ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a” federal habeas proceeding, but this limitation does “not preclude the appointment of different counsel, on the court's own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness or incompetence of counsel in such proceedings.” 28 U.S.C. 2261(e). This provision safeguards against the invalidation of capital judgments based on counsel incompetence in postconviction proceedings. It does not require the replacement of counsel if counsel does not perform competently, nor does it require the State to inform prisoners of any such right. Accordingly, section 2261(e) has no bearing on my certification decision. One comment asserted that Tennessee should be denied certification because its application to the Attorney General contains misrepresentations, inaccuracies, and material omissions. The substance of this complaint is that, in the commenters' view, Tennessee's application does not rebut the commenter's many objections to certification. This comment is not germane to my certification determination because chapter 154 does not condition certification on the State's submission of an application that is free of errors and that convincingly rebuts all objections. Furthermore, I have determined that Tennessee satisfies the requirements of chapter 154 based on a review of the relevant law and for the reasons stated in this certification. Insofar as either Tennessee's request or the public comments contain any inaccuracies or omissions, they were immaterial to my decision. Another comment argued that Tennessee does not satisfy chapter 154 because it does not require that postconviction counsel be formally appointed until a prisoner files an initial petition for postconviction relief. The comment noted that some prisoners under sentence of death may not be competent to file pro se petitions on their own and may need a “next friend” to file on their behalf, but the State has no mechanism for identifying such prisoners. Furthermore, the comment objected that Tennessee has no mechanism in place to inform prisoners under sentence of death of the postconviction process and requirements. In support of this objection, the comment quoted language from Attorney General Holder's response to public comments on the 2013 Regulations asserting that chapter 154 contemplates that States will provide “the opportunity for petitioners to file counseled State habeas petitions.” 78 FR at 58167. This comment misunderstands the requirements of chapter 154. The statute requires a mechanism for the appointment of counsel “in”—not before—“State postconviction proceedings brought by indigent prisoners who have been sentenced to death.” 28 U.S.C. 2265(a)(1). The state postconviction review proceedings begin on “the date on which the first petition for post-conviction review or other collateral relief is filed.” Id. 2263(b)(2). Before the petition is filed, chapter 154's requirement that counsel must be appointed does not apply. I am aware that one federal district court has suggested in dicta that chapter 154 might apply before the filing of a state postconviction petition, see Mills v. Anderson, 961 F. Supp. 198, 201 n. 4 (S.D. Ohio 1997), but that conclusion is inconsistent with the text of chapter 154. The 2013 Regulations likewise do not require a State to identify and to provide counsel to prisoners under sentence of death who might want to file a postconviction petition but have not yet done so. To the extent that remarks in the preamble to the 2013 Regulations suggest otherwise, those remarks are inconsistent with both the statutory and the regulatory text. The same comment cited 28 U.S.C. 2261(c), which requires that “[a]ny mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence.” 28 U.S.C. 2261(c). But the comment takes that language out of context. Section 2261(c) refers to a mechanism “provided in subsection (b).” 28 U.S.C. 2261(c). Subsection (b), in turn, refers to “a mechanism for providing counsel in postconviction proceedings as provided in section 2265.” Id. 2261(b)(1). And section 2265 refers to “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). Neither section 2261(c) nor any other provision of chapter 154 requires a State to seek out prisoners under sentence of death who might have collateral claims but have not filed petitions for postconviction relief. The “offer” language in section 2261(c) applies only when a prisoner under sentence of death has filed “the first petition for post-conviction review or other collateral relief,” id. 2263(b)(2), which begins the “State postconviction proceedings,” id. 2265(a)(1)(A). Several features of Tennessee's system ameliorate any potential concerns about the requirement to file an initial petition for postconviction relief. In Tennessee, counsel from the Office of the Post-Conviction Defender (“OPCD”) may help prisoners prepare and file their petitions prior to any formal appointment of counsel. A court may appoint counsel if necessary to secure the filing of a complete petition. See Tenn. Code Ann. sec. 40-30-106(e). It cannot dismiss a pro se petition for failure to follow the prescribed form until the court has given the petitioner a reasonable opportunity to amend the petition with the assistance of counsel. See Tenn. Sup. Ct. R. 28 sec. 6(B)(4)(b). After the filing of the initial petition and the appointment of counsel, a prisoner has the opportunity to amend the petition to raise additional issues. See Tenn. Code Ann. sec. 40-30-107(b)(2); Tenn. Sup. Ct. R. 28 sec. 6(B)(3)(b); id. R. 28 sec. 8(D)(5). The comment asserted that if an initial pro se petition is not sufficiently detailed and does not present complex factual allegations and legal claims, then a court will summarily dismiss the petition for failure to show that the petitioner is entitled to any relief. That characterization of Tennessee law is incorrect. A court will dismiss an initial pro se petition if it contains “[a] bare allegation that a constitutional right has been violated” or “mere conclusions of law.” Tenn. Code Ann. sec. 40-30-106(d). But a court will not dismiss a petition that states a “colorable claim,” which is defined as a claim “that, if taken as true, in the light most favorable to petitioner, would entitle petitioner to relief under the Post-Conviction Procedure Act.” Tenn. Sup. Ct. R. 28 sec. 2(H); see also id. R. 28 sec. 6(B). The presence of even minimal facts in an initial pro se petition is sufficient for the purpose of a court's preliminary consideration. See, e.g., Arnold v. State, 143 SW3d 784, 785-87 (Tenn. 2004) (reversing the summary dismissal of the initial pro se petition of a convicted child rapist alleging ineffective assistance of counsel with minimal factual support). Nevertheless, the comment suggested that Tennessee should be denied certification based on the bare possibility that postconviction counsel will not be appointed for an indigent prisoner in some capital case, where the petition is dismissed based on failure to state a colorable claim or other deficiency. As discussed above, Tennessee's system incorporates extensive assistance, procedures, and rights for petitioners which may foreclose the occurrence of such cases. If such a case were to occur despite these protections, counsel would not be “appointed pursuant to [the certified] mechanism” in the case, because not appointed at all, potentially bringing into play the inapplicability of chapter 154's expedited federal habeas review procedures in the individual case. 28 U.S.C. 2261(b)(2). But the actual occurrence or theoretical possibility of such a case would not contradict my conclusion, for the reasons explained above, that Tennessee “has established a mechanism for the appointment . . . of . . . counsel” for indigent prisoners in capital postconviction proceedings, which suffices for certification of Tennessee's mechanism. 28 U.S.C. 2261(b)(1), 2265(a)(1)(A). Another comment argued that Tennessee does not guarantee that counsel will be appointed in a timely manner. Although chapter 154 does not contain a timeliness requirement, the 2013 Regulations define “Appointment” to mean the “provision of counsel in a manner that is reasonably timely in light of the time limitations for seeking State and Federal postconviction review and the time required for developing and presenting claims in the postconviction proceedings.” 28 CFR 26.21; see also 73 FR at 75332; 91 FR at 12528. The commenter's objection is without merit because, as noted above, Tennessee provides a process for the prompt appointment of postconviction counsel. Furthermore, even if there were instances where postconviction counsel for an indigent defendant had not been appointed in a timely manner, that would not be a basis to deny certification. As discussed above, chapter 154 requires that a State have a mechanism for the appointment of postconviction counsel, see 28 U.S.C. 2265(a). If “appointment” of counsel is understood to mean appointment in a reasonably timely manner, as provided in 28 CFR 26.21, the section 2265 certification determination looks to whether the State has a mechanism for appointing counsel in a reasonably timely manner, not the timeliness of appointment in any individual case. Section 2265 certification is not a case-specific assessment. Relatedly, one comment asserted that, as a factual matter, many initial pro se habeas petitions in Tennessee have not been filed until after the expiration of the 180-day time limit of 28 U.S.C. 2263 that would be established by certification under chapter 154. The comment argued that Tennessee does not satisfy chapter 154 and the 2013 Regulations because postconviction counsel may be appointed weeks or months after a final judgment. That argument lacks merit. Cases are litigated, petitions are prepared and filed, and counsel are provided to assist in such petitions in conformity with the applicable time limits when the litigation occurs. The fact that litigants use more time when it is available to them says nothing about whether they could comply with a shorter deadline if the available time were reduced. And, in any event, the applicable time limit reflects a judgment by Congress about what amount of time is needed, assuming the State has established a postconviction capital counsel mechanism that meets the requirements of chapter 154. The comment also expressed concern that certification of Tennessee's mechanism would apply retroactively to pending federal habeas petitions seeking postconviction relief and would result in many of those petitions—those that were already, when filed, past the 180-day time limit for federal habeas filing under 28 U.S.C. 2263—being dismissed as untimely. Cf. 85 FR at 20719 (same concern noted and addressed in certification of Arizona's mechanism in 2020). But section 2265 dictates the effective date of a certification, see 28 U.S.C. 2265(a)(2), and gives the Attorney General no discretion to adjust that date. To the extent any individual habeas cases present retroactivity questions, those issues may be raised to the federal courts adjudicating those petitions. Regardless of how the courts may address this issue, it is not a matter under the control of the Attorney General or the State of Tennessee, and it does not bear on whether Tennessee has established a capital counsel mechanism satisfying the requirements of chapter 154. One comment asserted that significant time and resources are required to prepare and present claims in capital collateral litigation and that the time and conditions for adding claims after a federal habeas petition has been filed would be limited by 28 U.S.C. 2266 if chapter 154 applies. The comment interpreted the statute as requiring that a State requesting certification must guarantee that postconviction counsel will be appointed quickly so that all claims can be developed and presented consistent with the time limit in section 2263 and the limit on amending petitions in section 2266. However, neither chapter 154 nor the 2013 Regulations prescribe, as a condition of certification, a specific timeframe for appointing counsel after a judgment becomes final. Federal law similarly provides no specific timeframe for appointing counsel in federal habeas litigation or litigation arising under 28 U.S.C. 2255, yet such litigation is still subject to statutory time limits. See 18 U.S.C. 3599; see also 28 U.S.C. 2244(d), 2255(f), 2263. Nothing in the text of chapter 154 suggests that Congress intended to hold the States to a higher standard than the federal government in this regard as a condition of certification. The comment also overlooks statutory provisions that narrow the difference between the 180-day time limit for filing a federal habeas petition under chapter 154, see 28 U.S.C. 2263, and the one-year time limit under normal habeas procedures, see id. 2244(d). Chapter 154 provides a 180-day period for the filing of a federal habeas petition, extendable to 210 days for good cause and subject to tolling during the pendency of a petition for certiorari to the Supreme Court and during the pendency of state collateral proceedings. See id. 2263. Amendments to a petition are permitted until the filing of an answer, after which subsequent amendments are conditioned on satisfaction of the requirements for successive petitions under 28 U.S.C. 2244(b). See id. 2266(b)(3)(B). Both the time limit of section 2244(d) and the time limit of section 2263, as well as the limitation on amendments in section 2266, were enacted by Congress in 1996 in the Antiterrorism and Effective Death Penalty Act. In defining the limitations under chapter 154 somewhat more narrowly, Congress was attempting to solve the acute problems of delay and obstruction that thwart the execution of capital sentences. See 152 Cong. Rec. 2240-50 (remarks of Sen. Kyl). The comment also fails to acknowledge that a chapter 154 certification could, in a number of ways, lighten the load of defense counsel and enable them to meet shorter deadlines. Where chapter 154 applies, the automatic stay provisions of section 2262 are available, reducing the need to engage in litigation over stays of execution. Section 2264 also provides clearer and tighter rules concerning the range of cognizable claims in federal habeas corpus review under chapter 154, in comparison with the general federal habeas review standards, which relieves counsel of the need to prepare and to present claims precluded under section 2264. See 152 Cong. Rec. 2448-49 (remarks of Sen. Kyl) (explaining differences). Furthermore, chapter 154 relieves federal habeas counsel of the need to litigate questions concerning the exhaustion of state remedies, as well as other litigation burdens incident to the movement of cases between state and federal court, because the exhaustion requirement does not apply under chapter 154. See 28 U.S.C. 2264(b) (“Following review subject to subsections (a), (d), and (e) of section 2254, the court shall rule on the claims properly before it.”); 152 Cong Rec. 2447-48 (remarks of Sen. Kyl); 135 Cong. Rec. 24695, 24698 (Powell Committee Report); 73 FR at 75336; 85 FR at 20720. In light of these considerations, Congress concluded that the time limits and the limitation on amending petitions in chapter 154 strike the right balance between removing obstructions to the execution of capital sentences and affording prisoners under sentence of death the opportunity to seek postconviction relief. To the extent the commenters do not believe that chapter 154 provides adequate time for preparing and presenting claims, the place to raise that argument is before Congress. C. Counsel Competency 1. Counsel Competency Standards and Chapter 154 Chapter 154 also requires, as a condition of certification, that the State establish standards of competency for appointment of counsel in capital postconviction proceedings. 28 U.S.C. 2265(a)(1). Tennessee satisfies this requirement. Tennessee Supreme Court Rule 13, section 3(h), establishes competency standards for attorneys to be appointed as postconviction counsel in capital cases. There are two alternative paths to qualify as appointed postconviction counsel. Under the first path, an attorney qualifies to serve as appointed postconviction counsel if he also qualifies to serve as appointed appellate counsel. See Tenn. Sup. Ct. R. 13 sec. 3(h). The criteria for appointed appellate counsel are “three years of litigation experience in criminal trials and appeals” and experience as counsel of record in the appeal of either one capital case or three felony convictions. Id. R. 13 sec. 3(g). If the attorney's experience is based on the appeal of three felony convictions, that experience must have been “within the past three years,” and the attorney must also complete “a minimum of six hours of specialized training in the trial and appeal of capital cases.” Id. Under the second path, if an attorney does not meet the qualifications of appointed appellate counsel, he may still qualify to serve as appointed postconviction counsel if he has “experience as counsel of record in state post-conviction proceedings in three felony cases, two murder cases, or one capital case.” Id. R. 13 sec. 3(h). Regardless of whether he qualifies under the first or the second path, an attorney must also “have a working knowledge of federal habeas corpus practice, which may be satisfied by six hours of specialized training in the representation in federal courts of defendants under the sentence of death.” Id. These competency standards have not materially changed since Rule 13 went into effect on July 1, 1997. See Tenn. Sup. Ct. Order (Apr. 3, 1997), R. 13 sec. 3(g)-(h). In addition, Tennessee law provides that indigent capital defendants are generally represented in postconviction proceedings by qualified attorneys from the OPCD, unless those attorneys have a conflict of interest. See Tenn. Sup. Ct. R. 13 sec. 1(e)(4)(A); see also Tenn. Sup. Ct. Order (Apr. 3, 1997), R. 13 sec. 1(h); Tenn. Sup. Ct. Order (June 1, 2004), App'x A, R. 13 sec. 1(e)(4)(A). In the event of a conflict, the court will assign replacement counsel from a roster of qualified private attorneys maintained by the court. See Tenn. Sup. Ct. R. 13 sec. 1(e)(4)(B). The OPCD has existed in Tennessee since 1995 and has been primarily responsible for capital postconviction representation throughout the period of this certification. See Tenn. Code Ann. secs. 40-30-205(g), 40-30-206(a), (c); see also 1995 Tenn. Pub. Acts ch. 510 sec. 1. The required use of OPCD counsel in most cases provides an additional standard of competency because the attorneys appointed as postconviction counsel have been found fit for employment by a dedicated capital postconviction defender office whose regular work is postconviction capital representation. Moreover, by virtue of their employment in the OPCD, those attorneys are embedded in a community of coworkers who work on similar matters and can provide oversight and assistance. 2. Counsel Competency Standards and the 2013 Regulations The 2013 Regulations provide that a State's “mechanism must provide for appointment of competent counsel as defined in State standards of competency for such appointments.” 28 CFR 26.22(b). To aid in the determination regarding this requirement, paragraph (b)(1) provides two benchmark criteria. See id. 26.22(b)(1). A State's standards of competency are presumptively adequate if they meet or exceed either of the benchmarks. See id. Paragraph (b)(2) further states that competency standards will also “be deemed adequate” if they “reasonably assure a level of proficiency appropriate for State postconviction litigation in capital cases.” 28 CFR 26.22(b)(2). Tennessee's counsel competency standards satisfy paragraph (b)(2) because they compare favorably to the federal standards for attorneys appointed to serve as postconviction counsel in capital cases. See 18 U.S.C. 3599(c)-(d). The federal statutory competency standards are appropriate reference points in assessing corresponding state standards because Congress likely would not have deemed inadequate state competency standards that are similar to those it deemed adequate for federal postconviction proceedings in capital cases. See 78 FR at 58169-70. The federal competency standard requires at least five years of admission to the applicable court of appeals and at least three years of experience in handling felony appeals. See 18 U.S.C. 3599(c). The federal standard does not require postconviction or capital litigation experience or training. By contrast, both of Tennessee's alternative paths to qualify as appointed postconviction counsel require some degree of training or experience in postconviction proceedings or capital cases. See Tenn. Sup. Ct. R. 13 sec. 3(g)-(h). Moreover, Tennessee's standards require three years of litigation experience in criminal trial and appeals and experience in the appeal of a capital case or three felony convictions or experience in state postconviction proceedings in three felony cases, two murder cases, or one capital case. An attorney who satisfies Tennessee's competency standards is therefore likely at least as prepared to serve as appointed postconviction capital counsel as an attorney who satisfies the federal standard. With respect to public defenders from the OPCD, I find that the creation and use of a dedicated capital post-conviction defender office, with the structure, functions, and responsibilities described in Tenn. Code Ann. sec. 40-30-205 et seq., likewise satisfies paragraph (b)(2) because it “reasonably assure[s] a level of proficiency appropriate for State postconviction litigation in capital cases.” 28 CFR 26.22(b)(2). In addition to providing counsel whose day-to-day work is representing prisoners in capital postconviction proceedings, Tennessee's approach promotes proficient representation by using attorneys embedded in a community of similarly employed coworkers, who can provide oversight and assistance, and who can potentially be substituted if the individual counsel becomes unable to provide representation or to do so effectively. The conclusion that Tennessee's competency standards satisfy paragraph (b)(2) is reinforced by comparing Tennessee's standards to the benchmarks in paragraph (b)(1). Even if a State's capital counsel standards do not satisfy the benchmarks under paragraph (b)(1), those benchmarks continue to function as reference points in the evaluation of adequacy under paragraph (b)(2). State competency standards that are likely to result in significantly lower levels of proficiency than the benchmarks risk being found inadequate under chapter 154, whereas state competency standards that are likely to result in similar or even higher levels of proficiency than the benchmarks weigh in favor of a finding of adequacy under chapter 154. See 78 FR at 58172, 58179. The first benchmark, appearing in paragraph (b)(1)(i), is appointment of counsel “who have been admitted to the bar for at least five years and have at least three years of postconviction litigation experience.” Id. 26.22(b)(1)(i). This standard is an adaptation of the federal competency standard under 18 U.S.C. 3599, with postconviction litigation experience substituted for appellate litigation experience. See 78 FR at 58178. The basic standard is subject to the proviso that “a court, for good cause, may appoint other counsel whose background, knowledge, or experience would otherwise enable them to properly represent the petitioner, with due consideration of the seriousness of the penalty and the unique and complex nature of the litigation.” 28 CFR 26.22(b)(1)(i). Tennessee's standards compare favorably to the first benchmark for much the same reason that they compare favorably to the federal competency standards under 18 U.S.C. 3599. The benchmark could be satisfied by handling one or two postconviction proceedings over a period of three years in any type of case. In comparison, Tennessee's standards, as discussed above, include more robust criminal litigation experience and training requirements that can help in providing effective representation in capital postconviction proceedings. Therefore, an attorney who satisfies the Tennessee competency standards is likely at least as prepared to serve as appointed postconviction capital counsel as an attorney who satisfies the first benchmark in paragraph (b)(1)(i). The second benchmark, appearing in paragraph (b)(1)(ii), is appointment of counsel “meeting qualification standards established in conformity with” provisions of the federal Innocence Protection Act. Id. 26.22(b)(1)(ii). This benchmark requires that a State must “invest[ ] the responsibility for appointing qualified attorneys to represent indigent defendants in capital cases . . . in a public defender program that relies on staff attorneys, members of the private bar, or both, to provide representation in capital cases.” 34 U.S.C. 60301(e)(1)(A). The public defender program must “establish qualifications for attorneys who may be appointed to represent indigents in capital cases,” “establish and maintain a roster of qualified attorneys,” “conduct, sponsor, or approve specialized training programs for attorneys representing defendants in capital cases,” “monitor the performance of attorneys who are appointed and their attendance at training programs,” and “remove from the roster attorneys who” provide inadequate representation, have been sanctioned, or fail to comply with training requirements. Id. 60301(e)(2)(A)-(B), (D)-(E). Tennessee's use of the OPCD compares favorably to the second benchmark. The OPCD employs, trains, and supervises staff attorneys who represent indigent capital defendants in postconviction proceedings. See Tenn. Code Ann. secs. 40-30-206, -208. In addition, the OPCD is directed to provide training, consulting services, and sample materials and briefs to public defenders and private counsel representing indigent capital defendants. See id. sec. 40-30-206(d). The use of the OPCD creates “an effective system for providing competent legal representation,” which is the goal of the federal Innocence Protection Act and the second benchmark. 34 U.S.C. 60301(e). 3. Specific Criticisms The comments suggested that certification should be denied because it is possible to satisfy Tennessee's competency standards without any postconviction litigation experience or capital experience—for example, by serving as counsel of record in the appeal of three felony convictions within the past three years. See Tenn. Sup. Ct. R. 13 sec. 3(g)-(h). These comments lack merit because chapter 154 does not require either postconviction litigation experience or capital litigation experience as a prerequisite for appointment as counsel in capital postconviction proceedings. In Spears v. Stewart, the Ninth Circuit rejected the argument that Arizona's competency standards were insufficient because they permitted the appointment of attorneys who did not have capital litigation experience. See 283 F.3d at 1013. The court reasoned that “[n]othing in 28 U.S.C. 2261(b) or in logic requires that a lawyer must have capital experience to be competent.” Id. Likewise, in Ashmus v. Calderon, the Ninth Circuit rejected the argument that California's competency standards were insufficient because they did not require any familiarity with or experience in postconviction litigation. See 123 F.3d at 1208. The court concluded that “[m]any lawyers who could competently represent a condemned prisoner would not qualify under such a standard.” Id. The benchmark criteria in the 2013 Regulations likewise do not mandate postconviction or capital litigation experience in all cases. The second benchmark requires that state qualification standards must conform to certain provisions of the federal Innocence Protection Act, see 28 CFR 26.22(b)(1)(ii), and none of those provisions expressly requires either postconviction or capital litigation experience, see 34 U.S.C. 60301(e)(1), (e)(2)(A)-(B), (e)(2)(D)-(E). The first benchmark mandates three years of postconviction litigation experience as the default standard, but it provides that this standard may be waived “for good cause,” and it does not require any capital litigation experience. 28 CFR 26.22(b)(1)(i). Some comments asserted that certification should