COUNSEL: Ronald S. Matthias, Deputy Attorney General, San Francisco, California, for the respondent-appellant.

Michael Laurence, Habeas Corpus Resource Center, San Francisco, California, for the petitioner-appellee.

Mitchell Zimmerman, Fenwick & West LLP, Palo Alto, California, for the amicus.

Troy A. Ashmus, a prisoner sentenced to death by the California state courts, filed a federal petition for habeas corpus on May 15, 1998. During Ashmus' habeas proceeding, the State sought to avail itself of the procedural advantages of Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).1

Ashmus contested the State's claim, and the district court issued a preliminary injunction enjoining the State from asserting Chapter 154 with respect to his petition. See Ashmus v. Calderon, 31 F. Supp. 2d 1175 (N.D. Cal. 1998) (order) (Ashmus II); see also Ashmus v. Calderon , 935 F. Supp. 1048 (N.D. Cal. 1996) (Ashmus I), aff'd, 123 F.3d 1199 (9th Cir. 1997), rev'd for lack of a case or controversy , 523 U.S. 740 (1998).2 The State brings a certified interlocutory appeal challenging the district court's order. We affirm.

Before addressing the merits of the State's claim, we review the procedural history of Ashmus' direct and collateral review, the statutory provisions of Chapter 154, the "quid pro quo" arrangement reflected in the legislative history to Chapter 154, and the unitary scheme of collateral review adopted by the State of California in 1989.

In 1986, Troy A. Ashmus was convicted of murder in California state court and sentenced to death. The State appointed appellate counsel for Ashmus on March 4, 1987. The State of California did not adopt its unitary review scheme in any form until 1989; consequently, when Ashmus received counsel, his attorneys did not have the authority to, nor was it contemplated that they would, develop any collateral claims.

On June 6, 1989, the California Supreme Court promulgated policies providing that "[a]ppellate counsel in capital cases shall have a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus." Supreme Court Policies Regarding Cases Arising from Judgments of Death, Cal. Court Rules, Vol. 23, pt. 3, at 143 (1-1) (West 1996) (1989 Supreme Court Policies). Although Ashmus' state-appointed counsel may have been aware of this change in their obligations, they never received orders to investigate collateral claims.

The California Supreme Court affirmed Ashmus' death sentence on December 5, 1991. Ashmus initiated his federal habeas proceedings on February 17, 1993. See Ashmus II, 31 F. Supp. 2d at 1177.

California's eligibility to invoke Chapter 154 with respect to Ashmus' habeas petition turns on an interpretation of section 2265(a) of title 28.3 That section provides:

This chapter shall apply, as provided in this section, in relation to a State unitary review procedure if the State establishes by rule of its court of last resort or by statute a mechanism for the appointment, com pensation, and payment of reasonable litigation expenses of competent counsel in the unitary review proceedings, including expenses relating to the liti gation of collateral claims in the proceedings. The rule of court or statute must provide standards of competency for the appointment of such counsel.

In return for meeting the statutory requirements of Chapter 154, a state is entitled to the following procedural advantages with respect to a federal habeas petition filed by one of its capital-sentenced prisoners: (1) the petition must be filed within 180 days of the termination of state court proceedings, 28 U.S.C. S 2263(a);5 (2) the district court must render a final determination on the petition within 180 days of filing, S 2266(b)(1)(A); and (3) the court of appeals must render a determination on any appeal of the district court's determination within 120 days of the last responsive brief, S 2266(c)(1)(A).

This trade-off of procedural advantages in return for the appointment of competent counsel at the state and federal level creates a "quid pro quo" relationship. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996); see also Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). The Powell Committee, whose proposal Chapter 154 essentially codifies, see Ashmus I, 935 F. Supp. at 1055-56, stated the quid pro quo in these terms:

[T]he Committee believes that provision of competent counsel for prisoners under capital sentence throughout both state and federal collateral review is crucial to ensuring fairness and protecting the constitutional rights of capital litigants.

135 Cong. Rec. S13471-04, S13481, S13482 (Judicial Conference of the United States Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report (1989)) (Powell Committee Report).

The State of California adopted a unitary scheme of collateral review effective June 6, 1989. The scheme, which the State previously referred to as a " `comprehensive scheme of interlocking, cross-implementive provisions,' " quoting Ashmus I, 935 F. Supp. at 1056, is comprised of the following provisions:

(1) California Government Code S 68511.5 (effective Jan. 1, 1984);

(2) California Rule of Court 76.5 (effective Jan. 1, 1985);

(3) Section 20 of the Standards of Judicial Administration Recommended by the Judicial Council (effective Jan. 1, 1985);

(4) Introductory Statement, California Court Rules (effective Jan. 1, 1992)

(5) California Penal Code S 1241 (enacted 1955);

(6) California Government Code S 68070 (effec tive as amended Oct. 3, 1977);

(7) California Supreme Court Statement of Policies Regarding Cases Arising from Judgment of Death (adopted and effective June 6, 1989);

(8) California Supreme Court Internal Operating Practices and Procedures, Sections XIII.A and XIV.A (adopted Summer 1985, revised December 1989 and in 1995);

(9) California Supreme Court Payment Guidelines for Appointed Counsel Representing Indigent Criminal Appellants (revised Sept. 19, 1990, and Dec. 22, 1993); and

(10) California Supreme Court Guidelines for Fixed Fee Appointment, on Optional Basis, to Auto matic Appeals and Related Habeas Corpus Pro ceedings (effective Jan. 1, 1994).

In 1997, long after the completion of all of Ashmus' state proceedings, California revised the structure of its unitary review scheme. The state legislature adopted Chapter 2.1 (now Chapter 2.3) of title 8 of the California Government Code, see Cal. Gov't Code SS 68660-68666 (West Supp. 1999) (effective Jan. 1, 1998), to create the California Habeas Resource Center. Section 68662 required the California Supreme Court to "offer to appoint counsel to represent all state prisoners subject to a capital sentence for purposes of state post conviction proceedings." S 68662. Section 68665 required the California Judicial Council and the California Supreme Court to "adopt, by rule of court, binding and mandatory competency standards for the appointment of counsel in death penalty direct appeals and habeas corpus proceedings." S 68665. Accordingly, the Judicial Council and the California Supreme Court adopted California Rule of Court 76.6 (effective February 27, 1998) to implement the new statutory provisions. See Cal. R. Ct. 76.6 (West Supp. 1999).

This court has jurisdiction over this interlocutory appeal under 28 U.S.C. S 1292(b). We review the district court's conclusions of law de novo, see Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1318-19 (9th Cir. 1997), and its factual findings under the "clearly erroneous" standard, see Campbell v. Wood, 18 F.3d 662, 681 (9th Cir. 1994).6

[1] California can invoke the advantages of Chapter 154 with respect to Ashmus' habeas petition only if it affirmatively establishes that it has satisfied each condition in the federal statute. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996).

[2] Chapter 154 applies to pending habeas petitions. See AEDPA, S 107(c), 110 Stat. 1214, 1226. California can opt-in to Chapter 154's expedited procedures, however, only if its mechanism for the appointment, compensation and payment of reasonable litigation expenses of collateral counsel is "established." See S 2265(a) ("establishes"). The question then becomes the relevant date: when must California have `established' its mechanism for the appointment of counsel in order to opt-in to Chapter 154 for the purpose of applying those expedited procedures to Ashmus' federal habeas petition?

The State contends that the relevant date is June 6, 1989, the effective date of the 1989 Supreme Court Policies and thus the date when Ashmus became entitled to the appointment of collateral counsel under California's unitary review scheme. Ashmus contends that the relevant date is March 4, 1987, the date on which direct appeal counsel was appointed for him and thus the date on which he would have been entitled to the appointment of collateral counsel had California's unitary review scheme been in place at that time. The district court concluded that the relevant date was 1987, when Ashmus would have been entitled to collateral counsel. See Ashmus II, 31 F. Supp. 2d at 1182. We need not decide which date is correct, because the text of 28 U.S.C. S 2265 plainly precludes California's opting-in in either case.

[3] Prior to June 6, 1989, California had no scheme for the appointment of collateral counsel that could justify opting-in to Chapter 154. See Ainsworth v. Calderon, 138 F.3d 787, 790, amended by 152 F.3d 1223 (9th Cir. 1998); McDowell v. Calderon, 107 F.3d 1351, 1355 n.1, amended by 116 F.3d 364, vacated in part on other grounds on reh'g en banc, 130 F.3d 833 (9th Cir. 1997), cert. denied, 118 S. Ct. 1575 (1998). The State does not contest this point.

[4] In addition, from June 6, 1989, until at least January 1, 1998 (the effective date of California's appointment statute), California's unitary review scheme did not comply with the eligibility requirements of Chapter 154 of the AEDPA.7 During that period, as we will explain below, California (1) failed to establish its appointment mechanism "by rule of its court of last resort or by statute" as required by 28 U.S.C. S 2265(a); and (2) failed to adopt a "rule of court or statute [to] provide standards of competency for the appointment of such counsel" as also required by 28 U.S.C. S 2265(a). Thus, whether the relevant date is 1987, as claimed by Ashmus, or 1989, as urged by the State, California has not met the statutory burden set out in Chapter 154, and cannot now avail itself of the procedural advantages which that Chapter affords.8

A. Absence of statute or rule of court establishing mechanism for appointment of collateral counsel

[5] To be eligible under Chapter 154, California's mechanism for the appointment of collateral counsel must be "establishe[d] by rule of its court of last resort or by statute." 28 U.S.C. S 2265(a). From 1989 to 1998, however, California's appointment mechanism was established only in its 1989 Supreme Court Policies and Rule XIII (subsequently Rule XIV) of the Internal Operating Practices and Procedures (IOPPs) of the Supreme Court of California. See Cal. Court Rules, Vol. 23, pt. 3, at 141, 143-46. Neither of these authorities is a rule of court or statute. The 1989 Supreme Court Policies, as the name suggests, are policies -not rules of court or statutes.9 So, too, with the IOPPs. Although the IOPPs are contained in a bound volume labeled "Court Rules," the Introduction to the IOPP draws a distinction between the IOPPs and "provisions of the California Constitution, Codes and Rules of Court, as well as numerous provisions of the decisional law." Cal. Court Rules, Vol. 23, pt. 3, at 133 & n.2. In contrast to these latter mandatory and binding authorities, the IOPPs are merely "observed by the California Supreme Court in the performance of its duties." Id. at 133.10 This admission that the IOPPs are not mandatory and binding only reinforces our conclusion that the IOPPs cannot constitute a "rule of court" as that term is used in Chapter 154. Section 2265(b) requires that a qualifying unitary review procedure "must include an offer of counsel." S 2265(b) (emphasis added). Section 2261(c), incorporated into section 2265(b), requires that "[a]ny mechanism for the appointment, compensation, and reimbursement of counsel . . . must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record." S 2261(c) (emphases added). Chapter 154 thus requires a mandatory and binding appointment mechanism and, at all times relevant to Ashmus, California failed to provide one. Cf. Scott v. Anderson, 958 F. Supp. 330, 332 (N.D. Ohio 1997) (state system granting appointed attorney discretion whether to appeal capital case does not qualify under Chapter 154). Thus, both formally and functionally, the IOPPs are not rules of court within the meaning of 28 U.S.C. S 2265.

The State raises several objections to this conclusion, each of which we reject. The State contends that 28 U.S.C. S 2265(a) does not actually require the appointment mechanism to be embodied in a rule of court or statute, as long as the mechanism is "accomplished" by rule of court or statute. This claim has no support in the text. The statute is unambiguous: the State may opt-in to Chapter 154 only "if the State establishes by rule of its court of last resort or by statute a mechanism for the appointment, compensation, and payment" of collateral counsel. S 2265(a). We discern no basis or authority for the novel interpretation urged by the State, and the State itself provides none.11

The State also contends that Rule 76.5 and California Government Code S 68511.5 satisfy the federal statutory requirement. But neither Rule 76.5 nor section 68511.5 actually establishes a qualifying appointment mechanism for collateral appeals. Section 68511.5 merely directs the Judicial Council to "adopt rules of court regulating the selection of appointed counsel." Cal. Gov't Code S 68511.5. Rule 76.5 requires each appellate court to "adopt procedures for appointment of counsel in criminal cases," but does not itself contain procedures for the appointment of counsel. See Cal. R. Ct. 76.5(a). Thus, even were we to overlook the fact that these two provisions contemplate the appointment of counsel on direct, and not collateral, appeal,12 no interpretation of these provisions could support a conclusion that they "establish" a mechanism for the appointment, compensation and payment of collateral counsel.

Nor does it aid the State to read Rule 76.5 and section 68511.5 in conjunction with the 1989 Supreme Court Policies and Rule XIII/XIV of the IOPPs. As we noted above, these latter authorities are not rules of court, nor are they binding. They cannot remedy the failure to satisfy the federal statutory requirement.

The State of California has offered no evidence that, as of June 1989, it had established "by rule of its court of last resort or by statute" a mechanism for the appointment, compensation and payment of reasonable expenses for collateral counsel. On this ground alone, California is ineligible to opt-in to Chapter 154 with respect to Ashmus' federal habeas petition.

B. Absence of statute or rule of court providing standards of competency for appointment of collateral counsel

[6] Chapter 154 requires that qualifying states must provide standards of competency in a rule of court. The statute and legislative history also require that such standards be mandatory and binding. California's unitary review scheme satisfies neither requirement.

[7] The statute expressly states the first requirement: "The rule of court or statute must provide standards of competency for the appointment of such counsel." S 2265(a). The statute implicitly includes the second requirement: The competency standards must be binding and mandatory. See id. ("must provide standards"). As the district court correctly concluded, the legislative history demonstrates that Congress deemed the provision of competent counsel at all stages of collateral proceedings to be essential to the quid pro quo of Chapter 154. See Powell Committee Report, 135 Cong. Rec. at S13483 ("But to avail itself of [now Chapter 154's ] more structured habeas corpus review procedures, a State would have to establish a system for the appointment and compensation of competent counsel throughout all stages of state post conviction review."); see also Ashmus I, 935 F. Supp. at 1073. The requirement of competent counsel at all stages of the proceedings would be eviscerated if the decision to follow the standards were left to the discretion of a court or guideline administrator. Moreover, in the absence of mandatory standards, federal courts would be unable to evaluate the adequacy of a state's appointment mechanism without examining the competency of individual counsel. This approach would necessitate a case-by-case analysis to determine whether a state is entitled to the benefits of Chapter 154, a piecemeal consequence that Congress sought to avoid. See Powell Committee Report, 135 Cong. Rec. at S13483; see also Ashmus I, 935 F. Supp. at 1073-74.13 We conclude, as have other courts that have examined the issue,14 that a state's competency standards must be mandatory and binding if the State is to avail itself of Chapter 154.

[8] California's competency standards for collateral counsel are set out in section 20 of the Standards of Judicial Administration Recommended by the Judicial Council. See Cal. Court Rules, Vol. 23, pt. 2, at 636, 679-80, S 20 (West 1996).15 Section 20 is not a rule of court or statute, however. It is neither mandatory nor binding. Section 20 uses hortatory language -"should." See S 20(a) ("Each appellate court . . . should follow the guidelines in this section . . . .");S 20(c) ("The Supreme Court should maintain a list of attorneys for appointment in death penalty cases . . . ."). Section 20 is thus a " `recommendation[ ] to the courts' " made under the Judicial Council's authority to make recommendations under the state constitution; it is not a rule of court. Introductory Statement, Cal. Court Rules, Vol. 23, pt. 1, at 4 (West 1996).16 Also, as a recommendation to the Court, section 20 cannot be considered mandatory or binding. See id. ("The nonmandatory nature of the standards is indicated by the use of`should' instead of the mandatory `shall.' "). Section 20 is not, therefore, a qualifying competency standard within the meaning of 28 U.S.C. S 2265(a), and California is not eligible to opt-in to Chapter 154 with respect to Ashmus' petition. The State raises several objections, all of which are unavailing.17 The State contends that section 20 is a rule of court because it is promulgated under California Government Code S 68070, which authorizes promulgation of local rules. But California has presented no evidence that section 20 was actually promulgated under that code section. Moreover, the State's argument is directly contradicted by the Introductory Statement to the California Court Rules, which explains that section 20 is not a rule of court at all.

The State also urges that Rule 76.5 makes section 20 a rule of court and therefore mandatory. To be sure, Rule 76.5 is a rule of court, but it says only that the court shall "consider" the section 20 guidelines, and the guidelines themselves require nothing. See Cal. R. Ct. 76.5(b); see also Wright, 944 F. Supp. at 466 (concluding that "guidelines for establishing [competency] standards [that provide] . . . no indication how many of the delineated criteria MUST be met" do not satisfy 28 U.S.C. S 2261(b)). Also, under California's unitary review scheme the section 20 guidelines need not be applied in any form if the court contracts with an "administrator" to supervise the appointed counsel, see section 20(d), and the State points to no standards of competency for such an administrator. Rule 76.5 does not aid the State.

The State also claims that section 20 has become binding (and a rule of court) because it has been adopted by the California Supreme Court. The State presents some evidence that the section 20 considerations have been used by the California Supreme Court as an "initial measure of the experience and qualifications of private attorneys applying for appointment to a capital appeal." Ashmus II, 31 F. Supp. 2d at 1192 (internal quotation marks omitted). We agree, however, with the district court; the California Supreme Court's compliance in practice with a hortatory guideline does not meet the federal statutory command. See id.18

Finally, the State argues that a qualifying state's competency standards need not be contained in a rule of court or statute as long as they are provided for in one, and that California Government Code S 68511.5 and California Rule of Court 76.5 so provide. We decline to read the statute ("The rule of court or statute must provide standards of competency") to encompass a rule of court or statute that merely authorizes the promulgation of competency standards in some other instrument. Such an interpretation is contrary to the unambiguous meaning of the statute.19 But even if we were to adopt the construction urged by the State, it would not affect our analysis. Rule 76.5 and section 68511.5 do not require the promulgation of competency standards; at best, they merely permit them. See Cal. Gov't CodeS 68511.5 (requiring only the adoption of "procedures for the appointment of counsel in all appellate districts"); Cal. R. Ct. 76.5(a) (requiring only the adoption of "procedures for the appointment of counsel in criminal cases"). Moreover, section 68511.5 contemplates the appointment of counsel on direct, not collateral, appeal. See supra note 12. Finally, the substantive competency guidelines actually promulgated by the State (and contained in section 20) are recommendations to the courts only, and cannot satisfy the statutory requirement that such standards be mandatory and binding.

We therefore reject the State's argument that the unitary review scheme that it adopted in June 1989 meets the Chapter 154 requirement that "[t]he rule of court or statute must provide standards of competency for the appointment of[collateral] counsel."

[9] The State of California seeks to opt-in to the procedural advantages of Chapter 154 of the AEDPA with respect to Troy A. Ashmus' petition for federal habeas corpus. The State has not demonstrated, however, that it has complied with the unambiguous requirements of that statute. During all times relevant to this appeal, and at least until 1998, California failed to establish "by rule of its court of last resort or by statute" a mechanism for appointment and compensation of collateral counsel for its death-sentenced prisoners. California also failed to provide mandatory and binding standards of competency for collateral counsel in a "rule of court or statute."

AFFIRMED.