Reconsidering State Procedures for Appointment of Competent Counsel in Postconviction Review of Capital Sentences

Summary

This February 18, 2026 memorandum opinion of the Office of Legal Counsel reconsidered its 2009 interpretation of 28 U.S.C. § 2265(a)(1), which concerned federal standards for competent counsel and compensation in state postconviction capital proceedings. In light of Loper Bright Enterprises v. Raimondo, the Office withdrew the 2009 opinion as no longer a permissible reading of the statute. The Office declined to definitively determine the statute’s best interpretation, leaving that issue to an ongoing notice-and-comment rulemaking process.

Holdings

1. The Office withdrew its 2009 opinion and concluded that it could no longer be relied upon as a permissible reading of 28 U.S.C. § 2265(a)(1).
2. The Office declined to decide the statute's definitive meaning at this time and left the issue to an ongoing or anticipated notice-and-comment rulemaking process.

Questions Presented

1. Whether the Office of Legal Counsel should continue to adhere to its 2009 interpretation that 28 U.S.C. § 2265(a)(1) permits the Attorney General to impose federal competency and compensation standards for state postconviction counsel.
2. Whether the Office should definitively determine the best interpretation of 28 U.S.C. § 2265(a)(1) in light of Loper Bright Enterprises v. Raimondo.

Disposition

other