FILED: January 22, 2026
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUDICIAL COUNCIL
In the Matter of the Review of the *
Plan of the United States District *
Court for the Western District of North Carolina * No. 506
in Implementation of the Criminal Justice Act *
*
ORDER
The Plan of the United States District Court for the Western District of North Carolina,
which is attached to and made a part of this Order, is hereby approved by the Judicial Council of
the Fourth Circuit, and it is so ORDERED.
FOR THE COUNCIL:
James N. Ishida
Secretary
Date: January 22, 2026
United States District Court
For the Western District of North Carolina
Criminal Justice Act Plan
I. Authority ............................................................................................................... 5
II. Statement of Policy............................................................................................... 5
A. Objectives .................................................................................................. 5
B. Compliance ................................................................................................ 5
III. Definitions ............................................................................................................. 6
A. Representation .......................................................................................... 6
B. Appointed Attorney .................................................................................... 6
C. CJA Panel .................................................................................................. 6
D. CJA Panel Attorney ................................................................................... 6
E. CJA Panel Committee................................................................................ 6
F. CJA Coordinating Attorney ........................................................................ 6
G. CJA Team .................................................................................................. 6
H. Panel Attorney District Representative ...................................................... 7
IV. Determination of Eligibility for CJA Representation .............................................. 7
A. Subject Matter Eligibility ............................................................................. 7
1. Mandatory ....................................................................................... 7
2. Discretionary ................................................................................... 8
3. Ancillary Matters.............................................................................. 8
B. Financial Eligibility ..................................................................................... 9
1. Presentation of Accused for Financial Eligibility Determination ....... 9
2. Factual Determination of Financial Eligibility ................................. 11
V. Timely Appointment of Counsel .......................................................................... 12
A. Timing of Appointment ............................................................................. 12
B. Court’s Responsibility .............................................................................. 12
C. Pretrial Service Interview ......................................................................... 12
D. Retroactive Appointment of Counsel ....................................................... 12
VI. Provision of Representational Services .............................................................. 13
A. Federal Public Defender and CJA Panel Attorneys ................................. 13
B. Administration .......................................................................................... 13
C. Apportionment of Cases .......................................................................... 13
Page 2
D. Number of Counsel .................................................................................. 13
E. Capital Cases .......................................................................................... 13
VII. Federal Public Defender Organization ................................................................ 13
A. Establishment .......................................................................................... 13
B. Standards ................................................................................................ 13
C. Workload.................................................................................................. 14
D. Professional Conduct ............................................................................... 14
E. Private Practice of Law ............................................................................ 14
F. Supervision of Defender Organization ..................................................... 14
G. Voucher Review....................................................................................... 14
H. Mentorship ............................................................................................... 14
I. Training .................................................................................................... 15
VIII. CJA Panel of Private Attorneys .......................................................................... 15
A. CJA Panel Committee ............................................................................. 15
B. Duties of the CJA Committee................................................................... 15
1. Membership .................................................................................. 15
2. Recruitment ................................................................................... 15
3. Annual Report ............................................................................... 16
4. Removal ........................................................................................ 16
5. Voucher Review ............................................................................ 16
6. Mentoring ...................................................................................... 16
IX. Establishment of a CJA Panel ............................................................................ 17
A. Approval of CJA Panel ............................................................................. 17
B. Size of CJA Panel .................................................................................... 17
C. Qualifications and Membership on the CJA Panel ................................... 17
1. Application .................................................................................... 17
2. Equal Opportunity ......................................................................... 17
3. Eligibility ........................................................................................ 17
4. Appointment to CJA Panel ............................................................ 18
5. Terms of CJA Panel Members ...................................................... 18
6. Reappointment of CJA Panel Members ........................................ 19
7. Removal from the CJA Panel ........................................................ 19
D. Withdrawal and Inactive Status................................................................ 21
Page 3
X. Management of the Training Panel..................................................................... 22
A. Purpose of Training Panel ....................................................................... 22
B. Open Application to the General Panel .................................................... 22
C. Operation of Training Panel and Duties and Obligations of Membership. 23
D. Compensation of Training Panel Members .............................................. 24
E. Removal from Training Panel................................................................... 24
XI. CJA Panel Attorney Appointment in Non-Capital Cases .................................... 25
A. Appointment List ...................................................................................... 25
B. Appointment Procedures ......................................................................... 25
XII. Duties of CJA Panel Members............................................................................ 25
A. Standards and Professional Conduct....................................................... 25
B. Training and Continuing Legal Education ................................................ 26
C. Mentorship ............................................................................................... 27
D. Facilities and Technology Requirements ................................................. 27
E. Continuing Representation ...................................................................... 27
F. Miscellaneous .......................................................................................... 27
XIII. Compensation of CJA Panel Attorneys............................................................... 28
A. Policy of the Court Regarding Compensation .......................................... 28
B. Payment Procedures ............................................................................... 28
XIV. Investigative, Expert, and Other Services ........................................................... 29
A. Financial Eligibility.................................................................................... 29
B. Applications ............................................................................................. 29
C. Compliance .............................................................................................. 29
XV. Appointment of Counsel and Case Management in CJA Capital Cases ............. 30
A. Applicable Legal Authority ....................................................................... 30
B. General Applicability and Appointment of Counsel Requirements ........... 30
C. Appointment of Trial Counsel in Federal Death-Eligible Cases ................ 32
1. General Requirements .................................................................. 32
2. Qualifications of Learned Counsel ................................................ 33
3. Qualifications of Second and Additional Counsel .......................... 34
D. Appointment and Qualifications of Direct Appeal Counsel in Federal Death
Penalty Cases .......................................................................................... 34
E. Appointment and Qualifications of Post-Conviction Counsel in Federal
Death Penalty Cases (28 U.S.C. § 2255)................................................. 35
Page 4
F. Appointment and Qualifications of Counsel in Federal Capital Habeas
Corpus Proceedings (28 U.S.C. § 2254) .................................................. 36
XVI. Effective Date ..................................................................................................... 38
Page 5
United States District Court
For the Western District of North Carolina
Criminal Justice Act Plan
I. Authority
Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A, and
Guide to Judiciary Policy (Guide), Volume 7A, the judges of the United States District
Court for the Western District of North Carolina adopt this Plan, as approved by the
circuit, for furnishing representation in federal court for any person financially unable to
obtain adequate representation in accordance with the CJA. This plan supersedes all
prior CJA plans previously approved by this Court.
II. Statement of Policy
A. Objectives
The objectives of this Plan are:
1. to attain the goal of equal justice under the law for all persons;
2. to provide all eligible persons with timely appointed counsel
services that are consistent with the best practices of the legal
profession, are cost-effective, and protect the independence of the
defense function so that the rights of individual defendants are
safeguarded and enforced; and
3. to particularize the requirements of the CJA, the USA Patriot
Improvement and Reauthorization Act of 2005 (recodified at
18 U.S.C. § 3599), and Guide, Vol. 7A, in a way that meets the
needs of this district.
This Plan must therefore be administered so that those accused of a
crime, or otherwise eligible for services under the CJA, will not be
deprived of the right to counsel, or any element of representation
necessary to an effective defense, due to lack of financial resources.
B. Compliance
1. The Court, its Clerk, the Federal Public Defender (FPD), the
Federal Public Defender’s Office (FPDO), private attorneys
appointed under the CJA, and the United States Probation Office
must comply with the Guide, Vol. 7A, and with this Plan.
2. The Court will ensure that a current copy of the CJA Plan is made
available on the court’s website.
3. The FPDO will ensure that a current copy of the CJA plan is
available on the FPDO’s website and provided to CJA panel
attorneys upon designation as a member of the CJA Panel.
Page 6
III. Definitions
A. Representation
“Representation” includes counsel and investigative, expert, and other
services.
B. Appointed Attorney
“Appointed Attorney is an attorney designated to represent a financially
eligible person under the CJA and this Plan. Such attorneys include private
attorneys, the FPD and the assistant federal public defenders (AFPDs) of
the FPDO.”
C. CJA Panel
“CJA Panel” is a panel of private attorneys appointed under this plan who
provide representation for financially eligible individuals who are not
represented by the FPDO. The CJA Panel consists of a General Panel and
a Training Panel. When used, the term “CJA Panel” applies to both groups.
D. CJA Panel Attorney
“CJA panel attorney” is a private attorney appointed under this plan who
provides representation for financially eligible individual who are not
represented by the FPDO.
E. CJA Panel Committee
“CJA Panel Committee” is a committee that consist of one district court
judge, one magistrate judge, the FPD who acts as Chair, the CJA
Coordinating Attorney, the Clerk of Court or their representative, the Panel
Attorney District Representative (PADR), a criminal defense attorney who
practices regularly in the Charlotte and Asheville divisions, and members of
the FPDO CJA Team who will act as administrative coordinators.
F. CJA Coordinating Attorney
“CJA Coordinating Attorney” is an attorney employed by the FPDO who has
been designated by the FPD to manage the CJA program within in the
district.
G. CJA Team
“CJA Team” consists of the CJA Coordinating Attorney and such other
individuals identified by the FPD to assist with the administration of the CJA
program.
Page 7
H. Panel Attorney District Representative
“Panel Attorney District Representative” is a member of the CJA Panel who
is selected by the FPD, with the acquiescence from the Chief Judge, to
serve as the representative of the District’s CJA Panel for the national
Defender Services CJA PADR program and on local Court committees.
IV. Determination of Eligibility for CJA Representation
A. Subject Matter Eligibility
1. Mandatory
Representation must be provided for any financially eligible person
who:
a. is charged with a felony or with a Class A misdemeanor;
b. is a juvenile alleged to have committed an act of juvenile
delinquency as defined in 18 U.S.C. § 5031;
c. is charged with a violation of probation, or faces a change of
a term or condition of probation (unless the modification
sought is favorable to the probationer and the government
has not objected to the proposed change);
d. is under arrest, when such representation is required by law;
e. is entitled to appointment of counsel in parole proceedings;
f. is charged with a violation of supervised release or faces
modification, reduction, or enlargement of a condition, or
extension or revocation of a term of supervised release;
g. is subject to a mental condition hearing under 18 U.S.C.
chapter 313;
h. is in custody as a material witness;
i. is seeking to set aside or vacate a death sentence under
28 U.S.C. § 2241, § 2254 or § 2255;
j. is entitled to appointment of counsel in verification of consent
proceedings in connection with a transfer of an offender to or
from the United States for the execution of a penal sentence
under 18 U.S.C. § 4109;
k. is entitled to appointment of counsel under the Sixth
Amendment to the Constitution; or
Page 8
l. faces loss of liberty in a case and federal law requires the
appointment of counsel.
2. Discretionary
Whenever a district judge or magistrate judge determines that the
interests of justice so require, representation may be provided for
any financially eligible person who:
a. is charged with a petty offense (Class B or C misdemeanor,
or an infraction) for which a sentence to confinement is
authorized;
b. is seeking relief under 28 U.S.C. §§ 2241, 2254, or 2255
other than to set aside or vacate a death sentence;
c. is charged with civil or criminal contempt and faces loss of
liberty;
d. has been called as a witness before a grand jury, a court,
the Congress, or a federal agency or commission which has
the power to compel testimony, and there is reason to
believe, either prior to or during testimony, that the witness
could be subject to a criminal prosecution, a civil or criminal
contempt proceeding, or face loss of liberty;
e. has been advised by the United States Attorney or a law
enforcement officer that they are the target of a grand jury
investigation;
f. is proposed by the United States Attorney for
processing under a pretrial diversion program; or
g. is held for international extradition under 18 U.S.C.
Chapter 209; or
h. is seeking sentence reduction as a result of a newly
enacted federal law
3. Ancillary Matters
Representation may also be provided for financially eligible persons
in ancillary matters appropriate to the criminal proceedings under
18 U.S.C. § 3006A(c). In determining whether representation in an
ancillary matter is appropriate to the criminal proceedings, the court
should consider whether such representation is reasonably
necessary:
a. to protect a constitutional right;
Page 9
b. to contribute in some significant way to the defense of the
principal criminal charge;
c. to aid in preparation for the trial or disposition of the principal
criminal charge;
d. to enforce the terms of a plea agreement in the principal
criminal charge;
e. to preserve the claim of the CJA client to an interest in real
or personal property subject to civil forfeiture proceeding
under 18 U.S.C. § 983,19 U.S.C. § 1602, 21 U.S.C. § 881,
or similar statutes, which property, if recovered by the client,
may be considered for reimbursement under 18. U.S.C.
§ 3006A(f); or
f. effectuate the return of real or personal property belonging to
the CJA client, which may be subject to a motion for return of
property under Fed. R. Crim. P. 41(g), which property, if
recovered by the client, may be considered for
reimbursement under 18 U.S.C. § 3006A(f).
B. Financial Eligibility
1. Presentation of Accused for Financial Eligibility Determination
a. Duties of Law Enforcement
(i) Upon arrest, and where the defendant has not
retained or waived counsel, federal law enforcement
officials must promptly notify, telephonically or
electronically, the appropriate court personnel, who in
turn will notify the federal public defender of the arrest
of an individual in connection with a federal criminal
charge.
(ii) Employees of law enforcement agencies should not
participate in the completion of the financial affidavit
or seek to obtain information concerning financial
eligibility from a person requesting the appointment of
counsel.
b. Duties of United States Attorney’s Office
(i) Upon the return or unsealing of an indictment or the
filing of a criminal information, or the filing or
unsealing of a petition to modify or revoke probation
or supervised release, and where the defendant has
not retained or waived counsel, the United States
Attorney or their delegate will promptly notify,
Page 10
telephonically or electronically, appropriate Court
personnel, who in turn will promptly notify the Federal
Public Defender.
(ii) Upon issuance of a target letter, and where the
individual has not retained or waived counsel, the
United States Attorney or their delegate must
promptly notify , telephonically or electronically, the
CJA Team. The USAO’s notification will include any
known actual or potential conflict with the target, the
FPDO and/or any panel attorney.
c. Duties of Federal Public Defender Office
Employees of the United States Attorney’s Office
should not participate in the completion of the financial
affidavit or seek to obtain information concerning
financial eligibility from a person requesting the
appointment of counsel.
(i) In all cases requiring appointed counsel, the CJA
Team will immediately investigate and determine
whether an actual or potential conflict exists and
facilitate the timely appointment of counsel.
(ii) When a conflict with the FPDO is identified before the
initial appearance, the CJA Team will normally locate
a panel attorney to represent the person at the initial
appearance. Panel attorneys will be compensated for
a reasonable amount of preparation in advance of the
initial appearance. In extraordinary circumstances,
the FPDO duty attorney may represent a conflicted
person for the limited purpose of the initial
appearance.
d. Duties of Appointed Attorney
When practicable, the FPDO duty attorney or
appointed CJA Panel attorney will discuss with the
person who indicates that he or she is not financially
able to secure representation the right to appointed
counsel and, if appointment of counsel seems likely,
assist in the completion of a financial affidavit (Form
CJA 23) and arrange to have the person promptly
presented before a magistrate judge or district judge
of this court for determination of financial eligibility
and appointment of counsel.
Page 11
e. Duties of Pretrial Services Office
(i) When practicable, the pretrial services officer will not
conduct the pretrial service interview of a financially
eligible defendant until counsel has been appointed,
unless the right to counsel is waived or the defendant
otherwise consents to a pretrial service interview
without counsel.
(ii) When counsel has been appointed, the pretrial
services officer will provide counsel notice and a
reasonable opportunity to attend any interview of the
defendant by the pretrial services officer prior to the
initial pretrial release or detention hearing.
2. Factual Determination of Financial Eligibility
a. In every case where appointment of counsel is authorized
under 18 U.S.C. § 3006A(a) and related statutes, the court
must advise the person that he or she has a right to be
represented by counsel throughout the case and that, if so
desired, counsel will be appointed to represent the person
if he or she is financially unable to obtain counsel.
b. The determination of eligibility for representation under the
CJA is a judicial function to be performed by the court after
making appropriate inquiries concerning the person’s
financial eligibility. Other employees of the court may be
designated to obtain or verify the facts relevant to the financial
eligibility determination.
c. In determining whether a person is “financially unable to
obtain counsel,” consideration should be given to the cost of
providing the person and his or her dependents with the
necessities of life, the cost of securing pretrial release, asset
encumbrance, and the likely cost of retained counsel.
d. The initial determination of eligibility must be made without
regard to the financial ability of the person’s family to retain
counsel unless their family indicates willingness and ability to
do so promptly.
e. Any doubts about a person’s eligibility should be resolved in
the person’s favor; erroneous determinations of eligibility
may be corrected at a later time.
f. Relevant information bearing on the person’s financial
eligibility should be reflected on a financial eligibility affidavit
(Form CJA 23).
Page 12
g. If at any time after the appointment of counsel a judge finds
that a person provided representation is financially able to
obtain counsel or make partial payment for the
representation, the judge may terminate the appointment of
counsel or direct that any funds available to the defendant
be paid as provided in 18 U.S.C. § 3006A(f).
h. If at any stage of the proceedings a judge finds that a person
is no longer financially able to pay retained counsel, counsel
may be appointed in accordance with the general provisions
set forth in this Plan.
V. Timely Appointment of Counsel
A. Timing of Appointment
Counsel must be provided to eligible persons as soon as feasible in the
following circumstances, whichever occurs earliest:
1. after they are taken into custody;
2. when they appear before a magistrate or district court judge;
3. when they are formally charged or notified of charges if formal
charges are sealed; or
4. when a magistrate or district court judge otherwise considers
appointment of counsel appropriate under the CJA and related
statutes.
B. Court’s Responsibility
The Court, in cooperation with the FPDO and the United States Attorney,
will make such arrangements with federal, state, and local investigative
and police agencies as will ensure timely appointment of counsel.
C. Pretrial Service Interview
When practicable, unless the right to counsel is waived or the defendant
otherwise consents to a pretrial service interview without counsel,
financially eligible defendants will be provided appointed counsel prior to
being interviewed by a pretrial services officer. When counsel has been
appointed, the pretrial services officer will provide counsel notice and a
reasonable opportunity to attend any interview of the defendant by the
pretrial services officer prior to the initial pretrial release or detention
hearing.
D. Retroactive Appointment of Counsel
Appointment of counsel may be made retroactive to include representation
Page 13
provided prior to appointment.
VI. Provision of Representational Services
A. Federal Public Defender and CJA Panel Attorneys
This Plan provides for representational services by the FPD and for the
appointment and compensation of private counsel from a CJA Panel list
maintained by the FPD in cases authorized under the CJA and related
statutes.
B. Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby
delegated and assigned to the FPD.
C. Apportionment of Cases
Where practical and cost effective, private attorneys from the CJA Panel
will be appointed in a substantial proportion of the cases in which the
accused is determined to be financially eligible for representation under
the CJA. “Substantial” will usually be defined as a minimum of twenty-five
percent (25%) of the annual CJA appointments.
D. Number of Counsel
More than one attorney may be appointed in any case determined by the
Court to be difficult or an appropriate case for a member of the Training
Panel to serve as second chair.
E. Capital Cases
Procedures for appointment of counsel in cases where the defendant is
charged with a crime that may be punishable by death, or is seeking to
vacate or set aside a death sentence in proceedings under 28 U.S.C.
§§ 2241, 2254 or 2255, are set forth in section XV of this Plan.
VII. Federal Public Defender Organization
A. Establishment
The Federal Public Defender’s Office for the Western District of North
Carolina, has been established in this District under the CJA and is
responsible for rendering defense services on appointment throughout
this district.
B. Standards
The FPDO must provide high quality representation consistent with the
best practices of the legal profession and commensurate with those
Page 14
services rendered when counsel is privately retained. See Polk County v.
Dodson, 454 U.S. 312, 318 (1981) (“‘Once a lawyer has undertaken the
representation of an accused, the duties and obligations are the same
whether the lawyer is privately retained, appointed, or serving in a legal
aid or defender program.’” (quoting ABA Standards for Criminal Justice
section 4-3.9 (2d ed. 1980))).
C. Workload
The FPD will continually monitor the workloads of the FPDO to ensure
high quality representation for all clients.
D. Professional Conduct
The FPDO must conform to the highest standards of professional
conduct, including but not limited to the Code of Conduct for Federal
Public Defender Employees and the North Carolina Rules of Professional
Conduct, Federal Adaptation of the National Legal Aid and Defender
Association’s Performance Guidelines for Criminal Defense
Representations; The American Bar Association’s Criminal Justice
Standards for the Defense Function and Model Rules of Professional
Conduct; North Carolina Commission on Indigent Defense Services
Performance Guidelines for Indigent Defense Representation in Non-
Capital Criminal Cases at the Trial Level; and any other standards
published by the FPD.
E. Private Practice of Law
Neither the FPD nor any defender employee may engage in the private
practice of law except as authorized by the Federal Public Defender
Code of Conduct.
F. Supervision of Defender Organization
The FPD will be responsible for the supervision and management of the
FPDO. Accordingly, the FPD will be appointed in all cases assigned to the
FPDO with subsequent assignment or reassignment to assistant federal
public defenders at the discretion of the FPD.
G. Voucher Review
The CJA Team will assist the Court in ensuring compliance with mandated
billing guidelines and accurate record keeping, assessing the
reasonableness of vouchers and individual time entries, and providing due
process and fairness in voucher reviews.
H. Mentorship
The CJA Coordinating Attorney, in coordination with the PADR, will oversee
the Training Panel Mentorship Program described in Section X below.
Page 15
I. Training
The FPD will assess the training needs of the FPDO and, in coordination
with the CJA Coordinating Attorney and the PADR the training needs of
the CJA Panel and provide training opportunities and other educational
resources that include but are not limited to updates regarding substantive
law, sharing best practices in federal criminal defense, ethics, and
presentations on courtroom and office technology. The FPDO will publish
on its website the opportunities for continuing legal education available to
panel attorneys
VIII. CJA Panel of Private Attorneys
A. CJA Panel Committee
1. A CJA Panel Committee (“CJA Committee”) has been established
in the District. The CJA Committee consists of one district court
judge, one magistrate judge, the FPD who acts as Chair, the CJA
Coordinating Attorney, the Clerk of Court or their representative,
the CJA Panel Attorney District Representative (PADR), criminal
defense attorney who practices regularly in the Asheville and
Charlotte divisions, and members of the CJA Team who act as
administrative coordinators.
2. The FPD, the CJA Coordinating Attorney, , the Clerk of Court or
their representative, and the district’s PADR are permanent
members of the CJA Committee.
Membership on the CJA Committee will otherwise be for a term of
three years and may be extended for an additional three years.
Members’ terms will be staggered to ensure continuity on the CJA
Committee. Judicial vacancies will be filled by appointment of the
Chief Judge. Criminal defense attorney vacancies will be filled
upon a majority vote of the Committee.
3. The CJA Committee will meet at least twice a year and at any time
the Court or the Chair asks the Committee to consider an issue.
B. Duties of the CJA Committee
1. Membership
Examine the qualifications of applicants for membership on the CJA
Panel and recommend to the Board of Judges the approval of
those attorneys who are deemed qualified and the rejection of the
applications of those attorneys deemed unqualified.
2. Recruitment
Engage in recruitment efforts to establish a diverse panel and
Page 16
ensure that all qualified attorneys are encouraged to participate in
the furnishing of representation in CJA cases.
3. Annual Report
Review the operation and administration of the CJA Panel over the
preceding year, and recommend any necessary or appropriate
changes to the Board of Judges concerning:
a. the size of the CJA Panel;
b. the recruitment of qualified and diverse attorneys as required
and set forth in this plan; and
c. recurring issues or difficulties encountered by panel
members or their CJA clients.
4. Removal
Recommend to the Chief Judge the removal of any CJA
panel member who:
a. fails to satisfactorily fulfill the requirements of CJA panel
membership during their term of service, including the failure
to provide high quality representation to CJA clients, or
b. has engaged in other conduct such that his or her continued
service on the CJA Panel is inappropriate.
See also Section IX.C.7
5. Voucher Review
As requested, review and make recommendations on the
processing and payment of CJA vouchers in those cases where the
court, for reasons other than mathematical errors, is considering
authorizing payment for less than the amount of compensation
claimed by CJA counsel and has not been able to resolve the issue
through the CJA Coordinating Attorney. The judge will, at the time
the voucher is submitted to the CJA Committee, provide a
statement describing questions or concerns they have with the
voucher. Counsel will be notified of the potential voucher reduction
and given the opportunity to provide information or documentation
relevant to the voucher and concerns raised by the judge. The CJA
Committee will issue a written recommendation to the judge.
6. Mentoring
A mentoring program overseen by the CJA Coordinating
Attorney and PADR will be administered in compliance with
Section X.
Page 17
IX. Establishment of a CJA Panel
A. Approval of CJA Panel
The existing, previously established panel of attorneys under the
previous CJA Plan is hereby recognized. The Panel will consist of
two groups – the General Panel and the Training Panel.
B. Size of CJA Panel
1. The size of the CJA Panel will be determined by the CJA
Committee based on the caseload and activity of the panel
members, subject to review by the court.
2. The CJA Panel must be large enough to provide a sufficient
number of experienced attorneys to handle the CJA caseload, yet
small enough so that CJA panel members will receive an adequate
number of appointments to maintain their proficiency in federal
criminal defense work enabling them to provide high quality
representation consistent with the best practices of the legal
profession and commensurate with those services rendered when
counsel is privately retained.
C. Qualifications and Membership on the CJA Panel
1. Application
Application forms for membership on the CJA Panel are available
from the FPDO from the beginning of April to the end of June. In
exceptional circumstances, the CJA Committee may accept out
of cycle applications.
2. Equal Opportunity
All qualified attorneys are encouraged to participate in the
furnishing of representation in CJA cases.
3. Eligibility
a. Applicants for the CJA Panel must be members in good
standing of the federal bar of this district, the North Carolina
state bar and the Fourth Circuit Court of Appeals.
b. Applicants must maintain (i) a primary, satellite, or shared
office in this district; (ii) access to online or other computer-
assisted legal research; (iii) a computer with unlimited
internet access; (iv) an active account with this District’s and
the Fourth Circuit’s CM/ECF electronic filing systems; (v)
business voicemail, an answering service, or equivalent
mechanism and a business telephone system with the
Page 18
capability to accept collect calls from detention facilities.
General Panel applicants must possess strong litigation
skills and demonstrate proficiency with the federal
sentencing guidelines, federal sentencing procedures,
the Bail Reform Act, the Federal Rules of Criminal
Procedure, and the Federal Rules of Evidence and have
significant experience representing persons charged with
serious criminal offenses and demonstrate a commitment
to the defense of people who lack the financial means to
hire an attorney, including:
(i) Two years or more experience practicing federal
criminal law or five years or more experience practicing
state law;
(ii) Significant trial experience, including serving as lead
counsel in two or more jury trials (civil or criminal); and
(iii) Serving as either lead or “second chair” counsel in at
least two federal felony criminal cases. Second chair
participation means significant involvement in Bail Act
issues, discovery review, defense investigation, witness
interviewing, plea negotiations and/or trial preparation,
and PSR review and sentencing preparation.
c. Training Panel applicants must demonstrate prior
experience in criminal law, whether at the state or federal
level, and must demonstrate a commitment to the
defense of people who lack the financial means to hire an
attorney.
d. Even an applicant fulfilling all of the above qualifications is
not guaranteed admittance to CJA Panel.
4. Appointment to CJA Panel
The CJA Committee will evaluate attorneys for membership on and
reappointment to the CJA Panel and make recommendations to
the Court. After considering these recommendations, the Court will
appoint or reappoint attorneys to the CJA Panel. Due to the highly
complex and demanding nature of capital and habeas corpus
cases, special procedures will be followed for the eligibility and
appointment of counsel in such cases. See Section XV of this
Plan.
5. Terms of CJA Panel Members
Attorneys admitted to membership on the CJA Panel will each
serve for a term of three years, subject to the removal and
Page 19
reappointment procedures set forth in this plan.
6. Reappointment of CJA Panel Members
a. The CJA Team will notify CJA panel members, prior to the
expiration of their current term, of the need to apply for
reappointment to the CJA Panel.
b. A panel member who wishes to be considered for
reappointment must apply during the annual application
period immediately prior to the expiration of his or her
current term.
c. Reappointment to the CJA Panel is not automatic.
d. The CJA Committee will solicit input concerning the quality
of representation provided by lawyers seeking
reappointment.
e. The CJA Committee will also consider how many cases the
panel member has accepted and declined during the
review period, whether the member has participated in
training opportunities, whether the member has completed
the required federal criminal related CLE during the
previous term (see § XII.B.4), whether the member has
been the subject of any complaints, and whether the
member continues to meet the prerequisites and
obligations of CJA panel members as set forth in this Plan.
7. Removal from the CJA Panel
a. Mandatory removal
Any member of the CJA Panel who is suspended or
disbarred from the practice of law by the state court before
whom such member is admitted, or who is suspended or
disbarred from this court or any federal court, will be
removed from the CJA Panel immediately.
b. Automatic disciplinary review
The CJA Committee will conduct an automatic disciplinary
review of any CJA panel member against whom any
licensing authority, grievance committee, or administrative
body has taken action, or when a finding of probable cause,
contempt, sanction, or reprimand has been issued against
the panel member by any state or federal court.
c. Discretionary Removal. The CJA Committee may recommend
to the District Court the removal of a panel attorney who fails
to fulfill the obligations of CJA Panel membership.
Page 20
d. Complaints
(i) CJA Complaint Subcommittee (“Complaint
Subcommittee) consists of the FPD or delegee, CJA
Coordinating Attorney, and the PADR.
(ii) Initiation
A complaint against a panel member may be initiated
by the CJA Committee, a judge, another panel
member, a defendant, or a member of the federal
public defender office. A complaint need not follow
any particular form, but it must be in writing, provide
the complainant’s identity and contact information,
state the alleged deficiency with specificity, and
provide supporting documentation, if available. Any
complaint should be directed to the CJA Complaint
Subcommittee, which will determine whether further
investigation is necessary
(iii) Notice
When conducting an investigation, the CJA
Coordinating Attorney will notify the panel member of
the specific allegations.
(iv) Response
A panel member subject to investigation may respond
in writing and appear, but only if so directed, before
the CJA Committee or its subcommittee.
(v) Protective action
Prior to disposition of any complaint, the Complaint
Subcommittee may temporarily suspend the panel
member or recommend removal of the panel member
from any pending case, or from the panel, and may
take any other protective action that is in the best
interest of the client or the administration of this Plan.
(vi) Review and recommendation
After investigation, the Complaint Subcommittee will
forward the complaint to the CJA Committee who may
dismiss the complaint, or take appropriate remedial
action, including removing the attorney from the
Panel, limiting the attorney’s participation to particular
types or categories of cases, directing the attorney to
Page 21
complete specific CLE requirements before receiving
further panel appointments, limiting the attorney’s
participation to handling cases that are directly
supervised or overseen by another panel member or
other experienced practitioner, or any other
appropriate remedial action.
(vii) Final disposition by the Court
When removal is recommended the CJA Committee
will forward its recommendation to the Chief Judge
for consideration and final disposition.
(vii) Confidentiality
Information about complaints and potential
disciplinary action will remain confidential unless
otherwise directed by the Court or required by
applicable ethical standards. Unless the
complainant is a member of the judiciary, the
complainant will receive only confirmation that the
complaint was received.,
(ix) None of these procedures create a property interest in
being on or remaining on the CJA Panel.
e. Notification
The FPD will be immediately notified when any
member of the CJA Panel is removed or suspended.
D. Withdrawal and Inactive Status
1. Withdrawal.
An attorney may withdraw from the CJA Panel by
submitting a letter to the FPD, as Chair of the CJA Panel Committee.
The letter must include a list of pending appointments. Unless
otherwise ordered by the Court, the panel attorney will remain
responsible for representing clients in appointed cases until the
Court enters an order appointing substitute counsel.
2. Inactive Status.
Members of the CJA Panel may voluntarily place
themselves on inactive status. Panel attorneys must obtain
approval from the CJA Coordinating Attorney to remain on
inactive status for more than twelve months during one
appointment term,
Page 22
The FPD may place a member of the CJA Panel on inactive
status based on the following considerations:
a. The need to achieve an appropriate distribution of
appointed cases;
b. The pendency of an investigation by the CJA Complaint
Subcommittee; or
c. Another specified reason consistent with the objectives and
intent of this Plan.
X. Management of the Training Panel
A. Purpose of Training Panel
The Training Panel was established:
1. to provide promising attorneys with sufficient training,
mentoring, and experience to enable them to meet the eligibility
requirements of the CJA Panel and to excel at the provision of
representation to indigent criminal defendants in the District;
2. to aid in recruitment of qualified attorneys from diverse
backgrounds to serve on the CJA Panel; and
3. to ensure sufficient eligible attorneys are available within the
District to maintain a high and consistent standard of excellence in
representation for all indigent criminal defendants.
B. Open Application to the General Panel
1. At any time during their three-year term, a member of the Training
Panel who meets the qualification requirements set forth in
§ IX.C.3 and the mentoring program requirements set forth in
§ X.C.4 may apply for membership to the General Panel, without
regard to the annual open-application window referenced in
§ IX.C.1. The application must include an evaluation from the
applicant’s mentor. Any such application will be considered at a
time determined by the chair of the CJA Committee, but no later
than the next regularly scheduled meeting of the CJA Committee.
2. A member of the Training Panel who applies for and is denied
admission to the General Panel may continue to serve the
remainder of their term on the Training Panel, and may reapply for
admission to the General Panel at any time during the remainder of
their term.
Page 23
C. Operation of Training Panel and Duties and Obligations of Membership
1. Appointment to Non-Felony Cases
Members of the Training Panel are authorized to accept CJA
appointments for non-felony cases, including Supervised Release
Violation and Central Violations Bureau cases.
2. Second Chair Appointments in Felony Cases
Members of the Training Panel may also be appointed as second
chair to felony cases where appropriate.
3. Training
a. Orientation for New Members
(i) The CJA Coordinating Attorney shall organize orientation
sessions at least annually for new members to the Panel.,.
(ii) Training Panel members must attend an orientation
session within their first year and will not be appointed to
cases until such attendance is complete..
b. Additional Training Events
(i) The CJA Coordinating Attorney shall ensure that
additional training opportunities are reasonably available
for Training Panel members.,.
(ii) The CJA Coordinating Attorney, the FPD, or the PADR
shall have the discretion to make attendance at any
training event mandatory for Training Panel members,
subject to reasonable accommodation.
4. Mentoring Program
a. The CJA Coordinating Attorney, in conjunction with the
PADR, shall create and administer a mentoring program for
first term members of the Training Panel. The FPD may
provide guidance to mentors as appropriate.
b. Mentors shall be experienced and respected criminal
defense attorneys who have practiced extensively in federal
court.
c. Responsibilities of Mentors
Mentors shall make themselves reasonably available to their
mentees for advice and guidance and shall provide their
Page 24
mentees with opportunities to serve as second-chair
counsel, as defined in Section IX.C.3.b(iii) of this Plan.
d. Responsibilities of Mentees
Mentees must actively participate in the mentoring
program and shall be responsible for taking advantage of
mentoring opportunities provided them by their mentors,
diligently performing all duties and responsibilities of
second-chair counsel as assigned by their mentors, and
making arrangements with their mentors as needed to
receive advice and guidance.
D. Compensation of Training Panel Members
1. Non-Felony Cases
In non-felony cases where counsel has been appointed under the
CJA, Training Panel members shall be compensated under the
same terms and guidelines as a member of the CJA Panel.
2. Second Chair Cases
Training Panel members appointed as second-chair counsel shall
be compensated at half the rate as lead counsel unless the Court
determines the case to be unusually difficult, in which case the
Training Panel member will be compensated at the prevailing
hourly rate under the CJA.
3. Training, Consulting with Mentors, and Other Non-representation
Duties
Generally, Training Panel members shall not be compensated for
any functions that do not directly involve representation under the
CJA. At its discretion, however, the Court may choose to provide
compensation from the Court’s Bar and Bench fund for some non-
representational functions, at a rate determined by the Court,
E. Removal from Training Panel
1. A member of the Training Panel shall be subject to the removal
provisions set forth in § IX.C.7.
2. Other than unethical conduct, malpractice, or similarly egregious
issues, it is generally expected that complaints or concerns
regarding Training Panel members that do not involve unethical
conduct or malpractice will be referred to their mentor to address in
context of the mentoring relationship.
Page 25
XI. CJA Panel Attorney Appointment in Non-Capital Cases
A. Appointment List
The CJA Coordinating Attorney will maintain a current list of all attorneys
included on the CJA Panel, with current office addresses, email
addresses, and telephone numbers, as well as a statement of
qualifications and experience. Panel attorneys are required to timely
provide updated contact information to the FPD CJA Team.
B. Appointment Procedures
1. The FPD is responsible for overseeing the appointment of cases to
panel attorneys. The FPD will maintain a record of panel attorney
appointments and, when appropriate, data reflecting the
apportionment of appointments between attorneys from the FPDO
and panel attorneys.
2. Appointment of cases to CJA panel members will ordinarily be
made on a rotational basis, subject to the Court’s, the FPD’s, or
CJA Coordinating Attorney’s discretion to make exceptions due to
conflict of interest, the nature and complexity of the case, an
attorney’s experience, the attorney’s availability, and geographical
or other relevant considerations. This procedure should strive for a
balanced distribution of appointments and compensation among
the members of the CJA Panel, and quality representation for each
person eligible for representation under the CJA.
3. Under special circumstances the Court may appoint a member of
the bar of the Court who is not a member of the CJA Panel. Such
special circumstances may include cases in which the Court
determines that the appointment of a particular attorney is in the
interests of justice, judicial economy, or continuity of representation,
or for any other compelling reason. It is not anticipated that special
circumstances will arise often, and the procedures set forth in the
Plan are presumed to be sufficient in the vast majority of cases in
which counsel are to be appointed. Appointments made under this
section will be reported to the CJA Coordinating Attorney
4. Unless otherwise impracticable, CJA panel attorney(s) must be
available to represent defendant(s) at the same stage of the
proceedings as is the FPD.
XII. Duties of CJA Panel Members
A. Standards and Professional Conduct
1. CJA panel members must provide high quality representation
consistent with the best practices of the legal profession and
Page 26
commensurate with those services rendered when counsel is
privately retained. See Polk County v. Dodson, 454 U.S. 312, 318
(1981) (“‘Once a lawyer has undertaken the representation of an
accused, the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or
defender program.’” (quoting ABA Standards for Criminal Justice
section 4-3.9 (2d ed. 1980))).
2. Attorneys appointed under the CJA must conform to the highest
standards of professional conduct, as guided by the following
authorities as relevant;
a. Federal Adaptation of the National Legal Aid and
Defender Association’s Performance Guidelines for
Criminal Defense Representations;
b. The American Bar Association’s Criminal Justice
Standards for the Defense Function and Model Rules of
Professional Conduct;
c. Code of Conduct for Federal Public Defender Employees;
d. North Carolina’s Rules of Professional Conduct;
e. North Carolina Commission on Indigent Defense Services
Performance Guidelines for Indigent Defense
Representation in Non-Capital Criminal Cases at the Trial
Level;
f. Any other standards published by the FPD.
3. CJA panel members must notify the Chair of the CJA Committee
within 30 days when any licensing authority, grievance committee,
or administrative body has taken action against them, or when a
finding of contempt, sanction, or reprimand has been issued
against the panel member by any state of federal court.
B. Training and Continuing Legal Education
1. Attorneys on the CJA Panel are expected to remain current with
developments in federal criminal defense law, practice, and
procedure, including the Recommendation for Electronically Stored
Information (ESI) Discovery Production in Federal Criminal Cases.
2. Attorneys on the CJA Panel are expected to attend trainings
coordinated by the CJA Coordinating Attorney.
3. Attorneys on the CJA Panel will be guided in their practice by the
Federal Adaptation of the National Legal Aid and Defender
Association Performance Guidelines for Criminal Defense
Page 27
Representations.
4. CJA panel members must attend 12 continuing legal education
hours relevant to federal criminal practice every two years.
5 Failure to comply with these training and legal education
requirements may be grounds for removal from the CJA Panel.
C. Mentorship
a. General panel members must be willing to serve (i) as a
mentor and lead counsel to attorneys on the CJA Training
Panel; (ii) on CJA training programs for the district; or (iii)
on the CJA Committee.
b. Training panel members must actively participate in the
mentorship program set forth in § X.
D. Facilities and Technology Requirements
1. CJA panel attorneys must have facilities, resources, and
technological capability to effectively and efficiently manage
assigned cases.
2. CJA panel attorneys must comply with the requirements of
electronic filing and eVoucher.
3. CJA panel attorneys must know and abide by procedures related to
requests for investigative, expert, and other services.
E. Continuing Representation
Once counsel is appointed under the CJA, counsel will continue the
representation until the matter, including appeals (unless provided
otherwise by the Fourth Circuit’s CJA plan) or review by certiorari, is
closed; or until substitute counsel has filed a notice of appearance; or until
an order is entered allowing or requiring the person represented to
proceed pro se; or until the appointment is terminated by court order.
F. Miscellaneous
1. Case budgeting
In non-capital representations of unusual complexity that are likely
to become extraordinary in terms of cost, the court may require
development of a case budget consistent with Guide, Vol. 7A, Ch.
2, §§ 230.26.10–20.
Page 28
2. No receipt of other payment
Appointed counsel may not require, request, or accept any
payment or promise of payment or any other valuable consideration
for representation under the CJA, unless such payment is approved
by order of the court.
3. Redetermination of need
If at any time after appointment, counsel has reason to believe that
a party is financially able to obtain counsel, or make partial
payment for counsel, and the source of counsel’s information is not
protected as a privileged communication, counsel will advise the
court.
XIII. Compensation of CJA Panel Attorneys
A. Policy of the Court Regarding Compensation
Providing fair compensation to appointed counsel is a critical component
of the administration of justice. CJA panel attorneys must be
compensated for time expended in court and time reasonably expended
out of court, and reimbursed for expenses reasonably incurred.
B. Payment Procedures
1. Claims for compensation must be submitted on the appropriate
CJA form through the court’s eVoucher system.
2. The use of interim vouchers is encouraged.
3. Claims for compensation should be submitted no later than 45 days
after final disposition of the case, unless good cause is shown.
4. The CJA Team will review the claim for mathematical and
technical accuracy and for conformity with Guide, Vol. 7A and, if
correct, will forward the claim for consideration and action by the
presiding judge.
5. Absent extraordinary circumstances, the court should act on CJA
compensation claims within 30 days of submission, and vouchers
should not be delayed or reduced for the purpose of diminishing
Defender Services program costs in response to adverse financial
circumstances.
6. Any voucher cuts should be limited to mathematical errors,
instances in which work billed was not compensable, was not
undertaken or completed, and instances in which the hours billed
are clearly in excess of what was reasonably required to complete
the task.
Page 29
7. Except in cases involving mathematical corrections, no claim for
compensation submitted for services provided under the CJA will
be reduced without affording counsel notice and the opportunity to
be heard.
8. The court, when contemplating reduction of a CJA voucher for
other than mathematical reasons, may refer the voucher to the CJA
Committee for review and recommendation before final action on
the claim is taken. See Section VIII of this Plan.
9. Notwithstanding the procedure described above, the Court may, in
the first instance, contact appointed counsel to inquire regarding
questions or concerns with a claim for compensation. In the event
that the matter is resolved to the satisfaction of the court and CJA
panel member, the claim for compensation need not be referred to
the CJA Committee for review and recommendation.
XIV. Investigative, Expert, and Other Services
A. Financial Eligibility
Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for an adequate defense may request
such services in an ex parte application to the court as provided in
18 U.S.C. § 3006A(e)(1), regardless of whether counsel is appointed
under the CJA. Upon finding that the services are necessary, and that the
person is financially unable to obtain them, the court must authorize
counsel to obtain the services.
Upon application of the party, a court may choose to have applications for
investigative, expert, and other services considered by a non-presiding
judge to help ensure appointed counsel’s ability to obtain the necessary
resources in a manner that does not unreasonably compromise or
interfere with the exercise of sound independent professional judgment.
B. Applications
Requests for authorization of funds for investigative, expert, and other
services must be submitted in an ex parte application to the court (using
the court’s eVoucher system) and must not be disclosed except with the
consent of the person represented or as required by law or Judicial
Conference policy.
C. Compliance
Counsel must comply with Judicial Conference policies set forth in Guide,
Vol. 7A, Ch. 3.
Page 30
XV. Appointment of Counsel and Case Management in CJA Capital Cases
A. Applicable Legal Authority
The appointment and compensation of counsel in capital cases and the
authorization and payment of persons providing investigative, expert, and
other services are governed by 18 U.S.C. §§ 3005, 3006A, and 3599, and
Guide, Vol. 7A, Ch. 6.
B. General Applicability and Appointment of Counsel Requirements
1. Unless otherwise specified, the provisions set forth in this section
apply to all capital proceedings in the federal courts, whether those
matters originated in a district court (federal capital trials) or in a
state court (habeas proceedings under 28 U.S.C. § 2254). Such
matters include those in which the death penalty may be or is being
sought by the prosecution, motions for a new trial, direct appeal,
applications for a writ of certiorari to the Supreme Court of the
United States, all post-conviction proceedings under 28 U.S.C.
§§ 2254 or 2255 seeking to vacate or set aside a death sentence,
applications for stays of execution, competency proceedings,
proceedings for executive or other clemency, and other appropriate
motions and proceedings.
2. Any person charged with a crime that may be punishable by death
who is or becomes financially unable to obtain representation is
entitled to the assistance of appointed counsel throughout every
stage of available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction processes, together with
applications for stays of execution and other appropriate motions
and procedures, competency proceedings, and proceedings for
executive or other clemency as may be available to the defendant.
See 18 U.S.C. § 3599(e).
3. Qualified counsel must be appointed in capital cases at the earliest
possible opportunity. The USAO will notify the FPDO of all cases
involving capital crimes and provide a list of attorneys who may be
subject to a conflict of interest as soon as practicable and no later
than when such cases are placed on the public docket, to permit
the FPD to perform her or his obligations under 18 U.S.C. § 3005
and this plan.
4. Given the complex and demanding nature of capital cases, where
appropriate, the court will utilize the expert services available
through the Administrative Office of the United States Courts (AO),
Defender Services Death Penalty Resource Counsel projects
(“Resource Counsel projects”) which include: (1) Federal Death
Penalty Resource Counsel and Capital Resource Counsel Projects
Page 31
(for federal capital trials), (2) Federal Capital Appellate Resource
Counsel Project, (3) Federal Capital Habeas § 2255 Project, and
(4) National and Regional Habeas Assistance and Training Counsel
Projects (§ 2254). These counsel are death penalty experts who
may be relied upon by the court for assistance with selection and
appointment of counsel, case budgeting, and legal, practical, and
other matters arising in federal capital cases.
5. The FPD should promptly notify and consult with the appropriate
Resource Counsel projects about potential and actual federal
capital trial, appellate, and habeas corpus cases, and consider their
recommendations for appointment of counsel.
6. In appointing counsel in capital cases, judges should consider and
give due weight to the recommendation made by the FPD and
resource counsel and articulate reasons for not doing so.
7. The presiding judge may appoint an attorney furnished by a state or
local public defender organization or legal aid agency or other
private, non-profit organization to represent a person charged with
a capital crime or seeking federal death penalty habeas corpus
relief provided that the attorney is fully qualified. Such appointments
may be in place of, or in addition to, the appointment of a federal
defender organization or a CJA panel attorney or an attorney
appointed pro hac vice. See 18 U.S.C. § 3006A(a)(3).
8. All attorneys appointed in federal capital cases must be well
qualified, by virtue of their training, commitment, and distinguished
prior capital defense experience at the relevant stage of the
proceeding, to serve as counsel in this highly specialized and
demanding litigation.
9. All attorneys appointed in federal capital cases must have sufficient
time and resources to devote to the representation, taking into
account their current caseloads and the extraordinary demands of
federal capital cases.
10. All attorneys appointed in federal capital cases should comply with
the American Bar Association’s 2003 Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases (Guidelines 1.1 and 10.2 et seq.), and the 2008
Supplementary Guidelines for the Mitigation Function of Defense
Teams in Death Penalty Cases.
11. All attorneys appointed in federal capital cases should consult
regularly with the appropriate Resource Counsel projects.
12. There should be no formal or informal non-statutory
budgetary caps on capital cases, whether in a capital trial,
direct appeal, or habeas matter.
Page 32
13. All capital cases should be budgeted with the assistance of
case- budgeting attorneys and/or resource counsel where
appropriate.
14. Questions about the appointment and compensation of counsel and
the authorization and payment of investigative, expert, and other
service providers in federal capital cases should be directed to the
AO Defender Services Office, Legal and Policy Division Duty
Attorney at 202-502-3030 or via email at
[email protected].
C. Appointment of Trial Counsel in Federal Death-Eligible Cases1
1. General Requirements
a. Appointment of qualified capital trial counsel must occur no
later than when a defendant is charged with a federal
criminal offense where the penalty of death is possible. See
18 U.S.C. § 3005.
b. To protect the rights of an individual who, although
uncharged, is the subject of an investigation in a federal
death-eligible case, the court may appoint capitally-qualified
counsel upon request, consistent with Sections C.1, 2, and 3
of these provisions.
c. At the outset of every capital case, the court must appoint
two attorneys, at least one of whom meets the qualifications
for “learned counsel” as described below. If necessary for
adequate representation, more than two attorneys may be
appointed to represent a defendant in a capital case. See
18 U.S.C. § 3005.
d. When appointing counsel, the judge must consider the
recommendation of the FPD, who will consult with
Federal Death Penalty Resource Counsel to
recommend qualified counsel. See 18 U.S.C. § 3005.
e. In appointing counsel, judges should give due weight to the
recommendations made by federal defenders and resource
counsel and articulate reasons for not doing so.
f. To effectuate the intent of 18 U.S.C. § 3005 that the FPD’s
recommendation be provided to the court, the judge should
ensure the federal public defender has been notified of the
1 he Judicial Conference adopted detailed recommendations on the appointment and compensation of
counsel in federal death penalty cases in 1998 (JCUS-SEP 98, p. 22). In September 2010, the Defender
Services Committee endorsed revised commentary to the Judicial Conference’s 1998 recommendations.
CJA Guidelines, Vol. 7A, Appx. 6A (Recommendations and Commentary Concerning the Cost and Quality of
Defense Representation (Updated Spencer Report, September 2010)) (“Appx. 6A”) is available on the
judiciary’s website.
Page 33
need to appoint capitally-qualified counsel.
g. Reliance on a list for appointment of capital counsel is not
recommended because selection of trial counsel should
account for the particular needs of the case and the
defendant, and be based on individualized recommendations
from the FPD in conjunction with the Federal Death Penalty
Resource Counsel and Capital Resource Counsel projects.
h. Out-of-district counsel, including FDO staff, who possess
the requisite expertise may be considered for appointment
in capital trials to achieve high quality representation
together with cost and other efficiencies.
i. In evaluating the qualifications of proposed trial counsel,
consideration should be given to their commitment to the
defense of capital cases, their current caseload including
other capital cases, and their willingness to effectively
represent the interests of the client.
2. Qualifications of Learned Counsel
a. Learned counsel must either be a member of this district’s
bar or be eligible for admission pro hac vice based on his or
her qualifications. Appointment of counsel from outside the
jurisdiction is common in federal capital cases to achieve
cost and other efficiencies together with high quality
representation.
b. Learned counsel must meet the minimum experience
standards set forth in 18 U.S.C. §§ 3005 and 3599.
c. Learned counsel should have distinguished prior experience
in the trial, appeal, or post-conviction review of federal death
penalty cases, or distinguished prior experience in state
death penalty trials, appeals, or post-conviction review that, in
combination with co-counsel, will assure high quality
representation.
d. “Distinguished prior experience” contemplates excellence,
not simply prior experience. Counsel with distinguished prior
experience should be appointed even if meeting this
standard requires appointing counsel from outside the
district where the matter arises.
e. The suitability of learned counsel should be assessed with
respect to the particular demands of the case, the stage of
the litigation, and the defendant.
f. Learned counsel must be willing and able to adjust other
34
caseload demands to accommodate the extraordinary
time required by the capital representation.
g. Learned counsel should satisfy the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of representation in capital cases.
3. Qualifications of Second and Additional Counsel
a. Second and additional counsel may, but are not required to,
satisfy the qualifications for learned counsel, as set forth
above.
b. Second and additional counsel must be well qualified, by
virtue of their distinguished prior criminal defense
experience, training and commitment, to serve as counsel in
this highly specialized and demanding litigation.
c. Second and additional counsel must be willing and able to
adjust other caseload demands to accommodate the
extraordinary time required by the capital representation.
d. The suitability of second and additional counsel should be
assessed with respect to the demands of the individual case,
the stage of the litigation, and the defendant.
D. Appointment and Qualifications of Direct Appeal Counsel in Federal Death
Penalty Cases
1. When appointing appellate counsel, the judge must consider the
recommendation of the FPD, who will consult
with Federal Capital Appellate Resource Counsel to recommend
qualified counsel.
2. In appointing appellate counsel, judges should give due weight to
the recommendations made by federal defenders and resource
counsel and articulate reasons for not doing so.
3. Counsel appointed to represent a death-sentenced federal
appellant should include at least one attorney who did not represent
the appellant at trial.
4. Each trial counsel who withdraws should be replaced with similarly
qualified counsel to represent the defendant on appeal.
5. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital appeals to achieve high quality
representation together with cost and other efficiencies.
Page 35
6. Appellate counsel, between them, should have distinguished prior
experience in federal criminal appeals and capital appeals.
7. At least one of the attorneys appointed as appellate counsel must
have the requisite background, knowledge, and experience
required by 18 U.S.C.§ 3599(c) or (d).
8. In evaluating the qualifications of proposed appellate counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
9. In evaluating the qualifications of proposed appellate counsel,
consideration should be given to their commitment to the defense
of capital cases, their current caseload including other capital
cases, and their willingness to effectively represent the interests of
the client.
E. Appointment and Qualifications of Post-Conviction Counsel in Federal
Death Penalty Cases (28 U.S.C. § 2255)
1. A financially eligible person seeking to vacate or set aside a death
sentence in proceedings under 28 U.S.C. § 2255 is entitled to
appointment of fully qualified counsel. See 18 U.S.C. § 3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the court should consider appointing at least
two attorneys.
3. In light of the accelerated timeline applicable to capital § 2255
proceedings, prompt appointment of counsel is essential.
Wherever possible, appointment should take place prior to the
denial of certiorari on direct appeal by the United States Supreme
Court.
4. When appointing counsel in a capital § 2255 matter, the court
should consider the recommendation of the FPD, who will consult
with the Federal Capital Habeas § 2255 Project.
5. In appointing post-conviction counsel, judges should give due
weight to the recommendations made by federal defenders and
resource counsel and articulate reasons for not doing so.
6. Out-of-district counsel, including FPDO staff, who possess the
requisite expertise may be considered for appointment in capital
§ 2255 cases to achieve high quality representation together with
cost and other efficiencies.
7. Counsel in § 2255 cases should have distinguished prior
Page 36
experience in the area of federal post-conviction proceedings and
in capital post-conviction proceedings.
8. When possible, post-conviction counsel should have distinguished
prior experience in capital § 2255 representations.
9. In evaluating the qualifications of proposed post-conviction counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
10. In evaluating the qualifications of proposed post-conviction § 2255
counsel, consideration should be given to their commitment to the
defense of capital cases, their current caseload including other
capital cases, and their willingness to effectively represent the
interests of the client.
F. Appointment and Qualifications of Counsel in Federal Capital Habeas
Corpus Proceedings (28 U.S.C. § 2254)
1. A financially eligible person seeking to vacate or set aside a death
sentence in proceedings under 28 U.S.C. § 2254 is entitled to the
appointment of qualified counsel. See 18 U.S.C. § 3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the court should consider appointing at least
two attorneys.
3. When appointing counsel in a capital § 2254 matter, the
appointing authority should consider the recommendation of the
FPDO who will consult with the National or Regional Habeas
Assistance and Training Counsel projects. The FPD’s
recommendation may be to appoint the FPDO’s CHU, a CHU
from another district of other counsel who qualify for appointment
under 18 U.S.C. § 3599 and this Plan, or any combination of the
foregoing appropriate under the circumstances
4. In appointing counsel in a capital § 2254 matter, judges should give
due weight to the recommendations made by federal defenders and
resource counsel and articulate reasons for not doing so.
5. Out-of-district counsel, including FPDO staff, who possess the
requisite expertise may be considered for appointment in capital §
2254 cases to achieve cost and other efficiencies together with high
quality representation.
6. In order for federal counsel to avail themselves of the full statute of
limitations period to prepare a petition, the court should appoint
counsel and provide appropriate litigation resources at the earliest
possible time permissible by law.
Page 37
7. Unless precluded by a conflict of interest, or replaced by similarly
qualified counsel upon motion by the attorney or motion by the
defendant, capital § 2254 counsel must represent the defendant
throughout every subsequent stage of available judicial
proceedings and all available post-conviction processes, together
with applications for stays of execution and other appropriate
motions and procedures, and must also represent the defendant
in such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant. See
18 U.S.C. § 3599(e).
8. Counsel in capital § 2254 cases should have distinguished prior
experience in the area of federal post-conviction proceedings and
in capital post-conviction proceedings.
9. When possible, capital § 2254 counsel should have distinguished
prior experience in capital § 2254 representations.
10. In evaluating the qualifications of proposed capital § 2254 counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
11. In evaluating the qualifications of proposed capital § 2254 counsel,
consideration should be given to proposed counsel’s commitment
to the defense of capital cases, their current caseload including
other capital cases, and their willingness to represent effectively the
interests of the client.
Page 38
XVI. Effective Date
This Plan will become effective when approved by the Judicial Council of the
Fourth Circuit.
