868
Thomas, J., dissenting
habeas corpus proceedings." Ibid. Indeed, had Congress intended to establish such a "right," it surely would have done so in § 848(q)(4)(B), which provides for appointment of counsel, rather than in § 848(q)(9), which sets forth the mechanics of how "investigative, expert or other services" are to be obtained.
Moreover, § 848(q)(9) simply does not address the issue of when "investigative, expert or other services" are to be made available to a death-sentenced prisoner. The Court asserts that such services "may be critical" in the preapplication period. Ibid. Yet the issue of when these services are to be available, like the question of when a prisoner is entitled to counsel, is expressly addressed not in § 848(q)(9), but in § 848(q)(4). See § 848(q)(4)(A) (indigent defendant "charged with a [federal] crime which may be punishable by death" may obtain "representation [and] investigative, expert, or other reasonably necessary services" both "before judgment" and "after the entry of a judgment imposing a sentence of death but before the execution of that judgment"); see also § 848(q)(4)(B) (indigent prisoner "seeking to vacate or set aside [his] death sentence" may obtain "representation [and] investigative, expert, or other reasonably necessary services" "[i]n any post conviction proceeding under section 2254 or 2255"). And for purposes of this case, § 848(q)(4)(B) resolves the issue: Such services are to be made available only after a "post conviction proceeding under 2254" has been commenced.
As for the policy concerns rehearsed by the Court, I agree that legal assistance prior to the filing of a federal habeas petition can be very valuable to a prisoner. See ante, at 855-856. That such assistance is valuable, however, does not compel the conclusion that Congress intended the Federal Government to pay for it under § 848(q). As the Ninth Circuit has aptly observed: "Section 848(q) is a funding statute. It provides for the appointment of attorneys and the furnishing of investigative services for [federal] defendants or habeas corpus petitioners seeking to vacate or set aside a
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