Full opinion text
ORDER PAUL, Chief Judge. An emergency hearing was held in this matter on July 18,1996, on Plaintiff’s motion for a preliminary injunction (Doe. 6). Plaintiff had filed a brief (Doc. 7) (“Pi’s Br.”), and exhibits (Doc. 15) in support of his motion. At the hearing, Defendants filed a brief and supporting exhibits in opposition to Plaintiffs motion (Doc. 14) (“Defs.’Br”). Plaintiff moves to enjoin Defendants from invoking or asserting, in any state or federal proceeding, that the State of Florida has complied with the so-called “opt-in” provisions of Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 101 et seq., 110 Stat. 1214 (1996) (codified as 28 U.S.C. §§ 2261-66) (hereinafter “the Act”). Chapter 154, entitled “Special Habeas Corpus Procedures in Capital Cases,” provides for a system of expedited judicial review and other procedural limitations for any State that “opts-in” to the Chapter. A state may opt-in by creating a mechanism for the appointment and funding of. competent counsel to represent the State’s death-sentenced prisoners in their post-conviction habeas proceedings. According to> Plaintiff, the State of Florida has not fully complied with the creation of such an adequate mechanism, and therefore cannot take advantage of the benefits conferred upon opt-in states. Consequently, Plaintiff seeks a judicial determination pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and 42 U.S.C. § 1983, that the system of expedited habeas review may not be applied to either himself or other similarly situated Florida death-row inmates. As an initial matter, the Court will only consider the present motion for preliminary injunctive relief as to the Plaintiff in his individual capacity. While Plaintiff has included class language in both his complaint and motion for injunctive relief, he has not yet moved for class certification. Absent such a motion and a proper evidentiary basis, the Court cannot determine whether this case shpuld be maintained as a class action. See N.D.Fla.Loc.R. 23.1(B). I. BACKGROUND: A. Procedural history of Plaintiffs habeas petition: The following facts are drawn from the Supreme Court of Florida’s opinion in Hill v. State, 643 So.2d 1071 (Fla.1994) (per curiam) (“Hill IV”), cert. denied, — U.S.--, 116 S.Ct. 196, 133 L.Ed.2d 131 (1995): In 1983, Plaintiff Clarence Hill was convicted of first-degree murder and sentenced to death for the killing of a police officer during a bank robbery---- On October 19, 1982, [Hill] stole a pistol' and an automobile in Mobile, Alabama. Later that day, [Hill] and his accomplice, Cliff Jackson, drove to Pensacola and robbed a savings and loan association at gunpoint. When the police arrived during the robbery, [Hill] fled out the back of the savings and loan building. Jackson exited through the front door, where he was apprehended immediately. [Hill] approached two police officers from behind as they attempted to handcuff Jackson. Testimony established that [Hill] drew his pistol and shot the officers, killing one and wounding the other. A gun battle ensued, during which [Hill] received five bullet wounds. Id. at 1072 (quoting Hill v. State, 477 So.2d 553, 554 (Fla.1985) (per curiam) (“Hill I”)). The Supreme Court of Florida affirmed Hill’s conviction, but ordered a new penalty phase proceeding due to an error that occurred during the jury selection process. Hill I, 477 So.2d at 556-57. At resentencing, Hill was again sentenced to death on the basis of the trial judge’s determination, that there was one statutory mitigating factor (that Hill was 23 at the time of the murder), compared to five aggravating circumstances which included a finding that the murder was cold, calculated, and premeditated. On appeal, the Supreme Court of Florida affirmed, holding that while there was insufficient evidence to support a finding that the murder was cold, calculated, and premeditated, the remaining four aggravating circumstances nonetheless supported imposition of the death penalty. Hill v. State, 515 So.2d 176, 179 (Fla.1987) (per curiam) (“Hill II”). Hill’s motion for post-conviction relief and petition for writ of habeas corpus was then denied in Hill v. Dugger, 556 So.2d 1385 (Fla.1990) (per curiam) (“Hill III”). In 1990, Hill began the odyssey of seeking federal habeas relief by filing a petition in the United States District Court, Northern District of Florida. See Hill v. Butterworth, No. TCA-90-40023-WS (N.D.FIa., pending). In that case, Judge Stafford held that the trial judge erred in finding certain nonstatutory mitigating factors. In addition, Judge Stafford concluded that the Supreme Court of Florida may have erred in its harmless error analysis which invalidated the cold, calculated, and premeditated aggravating factor, without properly considering certain nonstatutory mitigating factors. Therefore, Judge Stafford partially granted Hill’s habeas petition. When the Supreme Court of Florida reopened Hill’s direct appeal, it held that death was the appropriate sentence because the statutory and nonstatutory mitigating factors were insufficient to outweigh the four remaining aggravating circumstances. Hill IV, 643 So.2d at 1074. On October 2, 1995, the United States Supreme Court denied' Hill’s petition for writ of certiorari. Hill v. Florida, — U.S. at-, 116 S.Ct. at 196: Plaintiffs habeas petition apparently remains pending before Judge Stafford. Plaintiff has not indicated whether he intends to file any new grounds for habeas relief, or otherwise amend the petition he has already filed. In addition, he has not informed the Court about the time frame in which he anticipates final resolution by Judge Stafford of any and all issues that remain in his habeas petition. Plaintiff now seeks this Court’s determination about the applicability of Chapter 154 of the Act to his habeas ease. B. The Act’s provisions: On April 24,1996, President Clinton signed the Act into law. Title I of the Act dramatically changes the procedures in federal courts by which state prisoners, particularly those under capital sentence, may raise constitutional claims pertaining to their convictions and sentences. The Act not only modifies Chapter 153 of the Judicial Code, 28 U.S.C. §§ 2241-55, but also creates a new set of procedures—Chapter 154, 28 U.S.C. §§ 2261-66—for resolving death-sentenced prisoners’ federal habeas corpus cases. The procedures contained in Chapter 154 are specifically designed to “reduce the abuse of habeas corpus that results from delayed and repetitive filings.” H.R. Rep. No. 23, 104th Cong., 1st Sess. 9 (1995). This legislative intent to curb the protracted proceedings in capital cases is best articulated in the language of the House Report accompanying the Act: Subtitle B of Title I of the bill contains a version of the recommendations for capital collateral litigation that were presented in the Report of the Ad Hoc Committee of the Judicial Conference on Federal Habeas Corpus in Capital Cases [45 Crim.L.Rep. (BNA) 3239 (Sept. 27, 1989) ] (the “Powell Committee” proposal). While the need for-reform extends to all categories of habeas cases, the defects of the current system have had the most extreme effect in capital cases. In such eases, the continuation of litigation means that the sentence cannot be carried out. Hence, capital defendants and their counsel have a unique incentive to keep litigation going by any possible means. In the later stages of review, the most useful means of doing so is by repetitive federal habeas filing. The result of this system has been the virtual nullification of state death penalty laws through a nearly .endless review process. H.R.Rep. No. 23, 104th Cong., 1st Sess. 10 (1995). The House Report goes on to describe when states can use the. new habeas provisions to remedy these flaws: In essence the Powell Committee proposal addresses this problem through a quid pro quo arrangement under which states are .accorded stronger finality rules on federal habeas review in return for strengthening the right to counsel for indigent capital defendants. The proposal consists of special capital litigation procedures that would be set out in a new chapter 154 of the Judicial Code. The chapter would apply to capital cases in states that undertake to appoint counsel to represent indigent capital defendants in state collateral proceedings, and to set competency standards for such counsel. This would fill the gap in representation for indigent capital defendants in state proceedings under existing law, since appointment of counsel for indigents is constitutionally required for the state trial and direct appeal. Id. Congress therefore did not intend that the new habeas provisions would necessarily apply to every state, but only those states that “opt-in” to the Act by meeting certain preconditions. If a state opts in to the new habeas provisions, it receives several procedural benefits. First, petitions for habeas relief under Section 2254 must be filed in federal court within 180 days “after final state court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2263(a). Second, federal district courts are limited to only considering “a claim or claims that have been raised and decided on the merits in the State courts.” 28 U.S.C. § 2264. Third, adjudication of a petition subject to Chapter 154 must be given priority by the district court and court of appeals “over all noncapital matters.” 28 U.S.C. § 2266(a). Fourth, reviewing courts are forced to expedite their review of habeas petitions brought under the Chapter 154. District courts, must render a final judgment on a habeas petition within 180 days after the petition is filed, allowing the parties at least 120 of those days to brief the case and have a hearing on the merits. A court of appeals must hear and render a final determination of an appeal within 120 days after the reply brief is filed. 28 U.S.C. § 2266. Fifth, no amendment to a habeas petition subject to Chapter 154 is permitted after the filing of the answer to the petition, except on certain grounds set forth in section 2244(b). 28 U.S.C. § 2266(b)(3)(B). States may qualify for the foregoing benefits under Chapter 154 if they qualify under one of two “opt-in” procedures: (1) “unitary review” procedures under Section 2265; or (2) “post-conviction” procedures under Section 2261. A “unitary review” procedure is defined as “a State procedure that authorizes a person under sentence of death to raise, in the course of direct review of judgment, such claims as could be raised on collateral attack.” 28 U.S.C. § 2265. The State of Florida does not provide for a “unitary review” process, and the State Defendants conceded as much during oral arguments. Tr. of July, 18, 1996 Hr’g on Mot. for Prelim. Inj. {hereinafter “Hr’g Tr.”), at 22. Consequently, the remainder of this discussion on the Act will focus on the requirements for opting in to Chapter 154 through adoption of “postcdnviction” procedures. To qualify for habeas benefits under Section 2261, a state must agree to provide competent counsel and reasonable litigation funding to indigent capital prisoners in its state post-conviction proceedings. Specifically, the Act provides, in relevant part: (a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied. (b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel. (c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record— (1) appointing one or more counsels to represent the prisoner under a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer; (2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or (3) denying the appointment of counsel upon a finding that the prisoner is not indigent. (d) No counsel appointed pursuant to subsections (b) and (c) to represent a State prisoner under capital sentence shall have previously represented the prisoner .at trial or on direct appeal in the ease Lor which the appointment is made unless the prisoner and counsel expressly request continued representation. ****** 28 U.S.C. § 2261 (1996). The importance of providing competent counsel for indigent petitioners subject to Chapter 154 is made clear in subsection (e) to Section 2261, which states that “[t]he ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254____” As another court reviewing this opt-in provision has noted, “[t]he Act thus seeks to create an incentive for states to provide competent counsel throughout state collateral review, recognizing that such counsel is ‘crucial to ensuring fairness and protecting the constitutional rights of capital litigants.’ ” Ashmus v. Calderon, 935 F.Supp. 1048, 1056 (N.D.Cal. June 14, 1996) (footnote omitted) (citations omitted), appeal filed, No. 96-16141 (9th Cir. 1996). II. DISCUSSION: Plaintiff Seeks to enjoin Defendants from invoking or asserting, in any state or federal proceeding, that Chapter 154 of the Act is applicable to his petition for writ of habeas corpus. The Plaintiff requests issuance of a temporary restraining order (“TRO”), or alternatively, a preliminary injunction. Under the Federal Rules, a TRO may be granted without written or oral notice to the adverse party ... only if (1) it appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party ... can be heard in opposition, and (2) the. applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Fed.R.Civ.P. 65(b). Plaintiff is not entitled to issuance of a TRO because he has filed neither an affidavit accompanying his petition, nor a verified complaint. Moreover, where, as here, the duration of the order will likely be more than 20 days [see Fed.R.Civ.P. 65(b) ], and the order will only be issued after notice and a hearing, a, district court should construe any request for a TRO as a request for a preliminary injunction. See Cuban Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1421-22 (11th Cir.) (quoting McDougald v. Jenson, 786 F.2d 1465, 1472 (11th Cir.1986)), cert. denied, — U.S.-, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995), and cert. denied, — U.S.-, 116 S.Ct. 299, 133 L.Ed.2d 205 (1995). Consequently, the injunetive relief to which Plaintiff is now entitled, if any, is limited to a preliminary injunction. A preliminary injunction “is an extraordinary and drastic remedy not to be granted unless the movant ‘clearly carries the burden of persuasion.’ ” Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985) (quoting United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983)). To prevail in its motion for a preliminary injunction, Plaintiff has the burden of proving: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) their own injury outweighs the injury to Defendants; and (4) the injunction would not disserve the public interest. Cuban Am. Bar Ass’n, 43 F.3d at 1424. Cf. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (same requirements for a TRO). Failure of Plaintiff to demonstrate one of these elements requires this Court to deny Plaintiffs motion for a preliminary injunction. Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir.1993). Each of these elements will be addressed separately. A. Substantial likelihood of success on the merits: Defendants raise several grounds upon which they argue that Plaintiff has no substantial likelihood of success on the merits. First, they maintain that Plaintiff lacks standing to bring the present cause. Second, they assert that Plaintiff has failed to demonstrate the existence of a case or controversy, depriving the Court of jurisdiction. Third, they conclude that even if Plaintiffs cause was properly before the Court, Plaintiffs interpretation of the applicability of Chapter 154 of the Act to the State of Florida is incorrect. The Court believes that Defendants’ arguments cut to the heart of whether Plaintiff is likely to prevail on the merits, and will tailor its analysis accordingly. 1. Plaintiff’s standing: The central purpose of the standing requirement is “to ensure that the parties before the court have a concrete interest in the outcome of the proceedings such that they can be expected to frame the issues properly.” Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir.) (en banc), cert. denied, — U.S. -, 115 S.Ct. 641, 130 L.Ed.2d 546 (1994). Standing is comprised of two separate and distinct inquiries: whether the party in question has constitutional standing under Article III of-the United States Constitution; and if so, whether the party in question can get past “prudential” limitations on the court’s exercise of its judicial power. When plaintiffs have moved for a preliminary injunction and have had little opportunity to present evidence or argument, “the plaintiffs’ standing should be judged on the sufficiency of the allegations of the complaint, with any preliminary hearing evidence favorable to the plaintiffs on standing treated as additional allegations of the complaint.” Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir.1994).. In order to have constitutional standing, the Plaintiff must meet three requirements. First, he must have suffered an “injury in fact”—in other words, violation of a “legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and conduct complained of____ Third, it must be likely that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Johnson v. Mortham, 915 F.Supp. 1529, 1539 (N.D.Fla.1995) (three judge panel) (quoting same). There are also certain “prudential” limitations on standing: the plaintiffs complaint must fall within the zone of interest protected by the statute or constitutional provision at issue, raise more than abstract questions amounting to generalized grievances, and assert the plaintiffs own legal rights and interests rather than those of a third party. E.g., Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975); Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th Cir.1987). Defendants apparently contend that Plaintiff has failed to demonstrate an injury in fact, instead relying upon potential injuries suffered by third parties. Defendants state that the focus of Plaintiffs complaint and request for injunctive relief is the “uncertainty” of inmates who have not yet filed habeas petitions. Defendants aver that Plaintiff is attempting to avoid a showing of individualized harm, by relying upon the possible claims of these other inmates. Since Plaintiff presently has a habeas petition pending in federal court “and no party has asserted that he has run afoul of any provision of the Antiterrori^m Act, or that any claim of his is barred thereby,” Defendants conclude that Plaintiffs motion should be denied and his complaint dismissed. Defs.’Br., at.5-6. To the extent that the Defendants’ argument pertaining to the injury in fact component requires resolution of whether this action is ripe for review, that argument is addressed in the next section. As to the question of whether the Plaintiff has alleged that he has personally suffered (or will suffer) injury if the requested relief is not granted, the Court finds that Plaintiff has demonstrated the requisite individualized harm. Plaintiff suffers from an actual injury because Defendants have asserted in these proceedings [see Defs. ’ Br., at 7-9; Hr’g Tr. at 22-25], and apparently will continue to assert absent judicial relief, that the new habeas provisions contained in Chapter 154 apply to Plaintiffs pending habeas petition. Although Plaintiff has already filed a habeas petition, the uncertainty of whether Chapter 154 applies to his cause will still force him to choose between either: (1) complying with that Chapter and sacrificing procedural rights he might otherwise have if the State of Florida has in fact not opted into Chapter 154; or (2) not complying with that Chapter, thereby sacrificing his procedural rights under the Chapter if the State of Florida has in fact opted into it. As a result, the pleadings and information adduced during oral arguments show that Plaintiff has constitutional standing, and the Court holds that there are no prudential limitations that weigh against exercising jurisdiction over Plaintiffs claim. 2. Existence of a case or controversy/ripeness: Article III of the Constitution restricts a federal court’s jurisdiction to actual “eases” or “controversies.” The Eleventh Circuit has stated that determining whether this constitutional requirement is met in the context of a request for relief pursuant to the Declaratory Judgement Act, boils down to the following: “whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” GTE Directories Pub. Corp. v. Trimen Am., Inc., 67 F.3d 1563, 1567 (11th Cir.1995). A party therefore cannot show a viable case or controversy where he or she is merely asking for an advisory opinion. Miller v. FCC, 66 F.3d 1140, 1146 (11th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 1543, 134 L.Ed.2d 647 (1996). When a party seeks a declaratory judgment, a case or controversy must exist at the time the action is filed. Trimen, 67 F.3d at 1567. Defendants agree with Plaintiff that the parties have taken different views on the applicability of Chapter 154, and that they have adverse legal interests intertwined with those views. See Defs. ’ Br., at 7. Nevertheless, Defendants dispute the existence of a substantial controversy. Instead, Defendants maintain that Plaintiff merely' seeks an advisory opinion: MR. MARTELL: The consequences of the Act’s implications in Florida are a different question from whether or not Florida qualifies for the Act. And when my opponent was discussing these scenarios, they were all prefaced with “If.” If this happens. If this is construed this way. If this is found this way. If a court does or does not dó that. That is speculative. In order to get the relief that he needs, he needs actual and imminent harm of an irreparable kind. He doesn’t have that. Assuming that the Act went into effect in Florida on the day it was enacted, no one is out of time. The six month time for filing has not run for anyone. All persons arguably within this class still have options of filing additional pleadings in state court, which would toll the time for their federal habeases to be filed. Hr’g Tr. at 19. As a result, Defendants conclude that there is no “case” or “controversy” to allow this Court to consider Plaintiffs motion for preliminary injunctive relief. In evaluating whether Plaintiff’s claim is ripe for review, the question turns on “the fitness of the issues for judicial decision” and “the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The first part of the Abbott Labs test, fitness, requires the issues be focused sufficient for a reviewing court to be able to conduct a proper inquiry. The present motion presents a simple question of law— namely, whether the State of Florida has opted into Chapter 154—that will not be enhanced by delaying review for further factual development. Under such circumstances, the issues are sufficiently focused. See, e.g., Pacific Gas & Elec. Co. v. State Energy Resources Conserv. & Dev. Comm’n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-35, 57 L.Ed.2d 595 (1978); Whitney v. Heckler, 780 F.2d 963, 969 n. 6 (11th Cir.), cert. denied, 479 U.S. 813, 107 S.Ct. 65, 93 L.Ed.2d 23 (1986). The second part of the Abbott Labs test, hardship, requires the Court to examine the hardship that Plaintiff might suffer absent judicial review. Pacific Gas, 461 U.S. at 201 & n. 13, 103 S.Ct. at 1720-21 & n. 13. In the case sub judice, if the Court does not act, Plaintiff will be deprived of the ability to make informed decisions on how to proceed in his habeas action because he will be uncertain about what procedures control. ' More specifically, Plaintiff must know if Chapter 154 applies to his ease so he can determine the following: whether he can amend his petition pending before Judge Stafford; whether he can file any unexhausted claims; whether he must file any new claims within 180 days of the effective date of the Act; what other time limits apply to his petition, including limitations on Conducting evidentiary inquiries and filing of briefs; and whether he can raise ineffectiveness or incompetence of post-conviction counsel in a later proceeding. The uncertainty of not knowing which procedures govern Plaintiffs habeas petition will also make it difficult, if not impossible, for Plaintiff’s collateral counsel to litigate the habeas petition effectively on Plaintiffs behalf. Consequently, the Plaintiff stands to suffer immediate and irremedial hardship. The fact that certain contingencies may be involved—e.g., .whether Plaintiff in fact takes particular courses of action in his habeas proceedings—is not fatal. The law is well-established that “an issue is ripe for judicial review when the challenging party is placed in the dilemma of incurring the disadvantages of complying or risking penalties for noneomplianee.” Whitney, 780 F.2d at 969 n. 6. Cf. New York v. United States, 505 U.S. 144, 175, 112 S.Ct. 2408, 2428, 120 L.Ed.2d 120 (1992); Pacific Gas, 461 U.S. at 201, 103 S.Ct. at 1721; Regional Rail Reorganization Act Cases (“Rail Cases”), 419 U.S. 102, 144-45, 95 S.Ct. 335, 339, 42 L.Ed.2d 320 (1974); Abbott Labs, 387 U.S. at 153, 87 S.Ct. at 1518. This conclusion is likewise not altered by the fact that the 180 day statute of limitations under Chapter 154 will not run until later this year. “Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.” Rail Cases, 419 U.S. at 143, 95 S.Ct. at 358 (collecting cases). In fact, Defendants are simply mistaken in their assertion that any consequences Plaintiff will suffer if Chapter 154 applies will not occur until the 180 day filing deadline expires. If Chapter 154 applies to Plaintiff, he will have to immediately and significantly change his conduct in accordance, with the new habeas procedures, “with serious penalties attached .to noneomplianee.” Abbott Labs, 387 U.S. at 153, 87 S.Ct. at 1518. Plaintiffs declaratory judgment action is therefore ripe for review. Cf. Lujan v. National Wildlife Federation, 497 U.S. 871, 891-92, 110 S.Ct. 3177, 3190, 111 L.Ed.2d 695 (1990) (agency action is ripe for review at once, where “a substantive rule ... as a practical matter requires the plaintiff to adjust his conduct immediately”); Florida League of Professional Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir.1996) (action challenging constitutionality of state lobbying statute was ripe even where no lobbyists had been prosecuted under it, since plaintiffs faced “unattractive” options of either sacrificing their First Amendment rights or facing sanctions). Accord, Riva v. Massachusetts, 61 F.3d 1003, 1012 (1st Cir. 1995); Browning-Ferris v. Alabama Dep’t of Envtl. Mgmt, 799 F.2d 1473, 1480-81 (11th Cir.1986). In summary, for all the foregoing reasons, the Court finds that there is a justiciable case or controversy underlying the instant motion for preliminary injunctive relief. While the difference between an abstract advisory opinion and a case or controversy is necessarily “one of degree,” the Court finds a substantial basis to conclude that Plaintiff is seeking to avoid actual or imminent injury to himself in his habeas proceedings. 3. Has Florida “opted in” to the Act?: The parties seem to be in agreement that Florida has a “post-conviction” type of system for the. review of capital convictions and sentences that have been made final for purposes of state law. Florida law supports this view., The Florida Rules of Criminal Procedure create a system for seeking post-conviction relief only after direct appeal is final. See, e.g., Fla.R.Crim.P. 3.850(a) (stating general ground for post-conviction motion that “the judgment or sentence is otherwise subject to collateral attack”); Fla.R.Crim.P. 3.850(e) (stating that “[t]his rule does not authorize relief based on grounds that could have or should have been raised ..., if properly preserved, on direct appeal of the judgment and sentence”). Furthermore, the statute creating the office of Capital Collateral Representative (“CCR”), contained in Part IV of Florida Statutes, Chapter 27, specifically provides for “the collateral representation of any person convicted and sentenced to death in this state, so that collateral legal proceedings to challenge any Florida capital conviction and. sentence may be commenced. ...” Fla.Stat. § 27.7001 (1996) (emphasis added). .As a result, if Florida may take advantage of Chapter 154 of the Act, it may only do so if it meets all the requirements for .“post-conviction” procedures. States seeking to qualify under the “post-conviction” route must do several things: (1) establish by statute or rule a mechanism for appointment of counsel for post-conviction proceedings brought by all capital prisoners; (2) ensure that appointed counsel are competent; (3) pay appointed counsel reasonable litigation expenses; and (4) offer counsel to all capital prisoners seeking post-conviction relief, with actual appointment of counsel occurring upon a determination that the capital prisoner is indigent and has accepted the offer. See 28 U.S.C. § 2261. Failure to meet any one of these requirements would prevent a state from having qualifying “post-conviction” procedures. Preliminarily, the Court agrees with Defendants that the State of Florida has established a comprehensive statutory framework for appointment of counsel in post-conviction proceedings brought by all capital prisoners. In its last session, the Florida Legislature made several changes to Florida Statutes Chapter 27, in an apparent attempt to conform the language of its post-conviction procedures to that of the Act. See 1996 Fla. Sess. Law Serv. ch. 96-290 (West). Section 27.7001 was amended by taking out language that collateral counsel was to be offered to only indigent capital prisoners, and making such counsel available to “any” capital prisoner seeking collateral review. Fla.Stat. § 27.7001. Other sections were similarly modified. Cf. Fla.Stat. § 27.702 (capital collateral representative “shall represent each person convicted and sentenced to death in this state in collateral postconviction proceedings, unless a court appoints or permits other counsel to appear”) (emphasis added); Fla.Stat. § 27.703 (requiring appointment of other members of Florida Bar to represent such persons, when capital collateral representative is conflicted out). Notwithstanding these statutory changes, Plaintiff makes several arguments to support his conclusion that Florida has not fully complied with the post-conviction requirements set forth in the Act. The Court will address these arguments under two broad categories: (1) competency of appointed counsel; and (2) offer of counsel. a. Competency of counsel: Under Chapter 154 of the Act, “[a] rule of court or statute must provide standards of competency” for post-conviction counsel. 28 U.S.C. § 2261(b). Plaintiff asserts that Florida’s post-conviction scheme fails to abide by this requirement in several respects. Most of Plaintiffs arguments are meritless. The Court will therefore limit its discussion solely to Plaintiffs most persuasive contention. Plaintiff asserts that Florida does not have the requisite competency standards. PI. Br., at 17. Defendants respond by stating that the Supreme Court of Florida has been vigilant in its oversight of collateral representation, thereby ensuring the competency of such representation. As support for their argument, Defendants cite to the Supreme Court of Florida’s decisions in Spalding v. Dugger, 526 So.2d 71, 72 (Fla.1988), and Spaziano v. State, 660 So.2d 1363 (Fla.1995), cert. denied, — U.S.-, 116 S.Ct. 722, 133 L.Ed.2d 674 (1996). Defs. ’ Br., at 8-9. Currently, there are only two Florida provisions that suggest any standards of competency, as required by Chapter 154. To qualify for appointment as the State Capital Collateral Representative, an individual must have been a member of the Florida Bar for at least five years. See Fla.Stat. §' 27.701. On the, other hand, full-time assistant capital collateral representatives must be “members in good standing of The Florida Bar with not less than 2 years experience in the practice of criminal law.” Fla.Stat. § 27.704(1). There is no additional requirement that either the Capital Collateral Representative or his or her assistant representatives, have any degree of specialization or skill in the arena of habeas proceedings. Moreover, when CCR is conflicted out of a case, there is no provision for any degree of competence or experience for substitute counsel. See Fla. Stat. § 27.703. Two other courts have found that similar shortcomings in other state appointment schemes, precluded those states from qualifying under the “opt-in” provisions of Chapter 154. In Ashmus, the court expressly held that competency standards sufficient to satisfy Chapter 154 should “require counsel to have ... experience or competence in raising collateral issues.” 935 F.Supp. at 1072. See also id. at 55-57, at 1074-75 (finding that California failed to include such a requirement). Similarly, in Austin v. Bell, 927 F.Supp. 1058 (M.D.Tenn.1996), the court held that merely requiring that appointed capital post-conviction counsel be a member of the state bar did not satisfy the competency requirement of Chapter 154. The Austin court reasoned: It is crucial under the Act that only qualified attorneys be appointed to represent habeas petitioners in capital cases because the Act does not permit the ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings to be grounds for relief in a proceeding arising under section 2254. Instead, such incompetence may only result in the appointment of different counsel on the motion of the state or the petitioner. 28 U.S.C. § 2261(e). Id. at 1062. Since Tennessee law did not sufficiently ensure the competency of collateral counsel, the Austin court concluded that Chapter 154 of the Act did not apply to Tennessee. Id. The Court agrees with this analysis. Simply requiring assistant capital collateral representatives to “be members in good standing of the Florida Bar with not less than two (2) years experience in the practice of criminal law” is not an adequate standard of competency for purposes of “opting-in” to Chapter 154. The plain language of 28 U.S.C. § 2261 contemplates counsel who are competent through capital, post-conviction experience. See 28 U.S.C. § 2261(b) (state mechanism must provide for “competent counsel in State post-conviction proceedings [and] .'.. [t]he rule of court or statute must provide standards for the appointment of such counsel”) (emphasis added). See also 137 Cong. Rec. S3220 (daily ed. March 13, 1991) (“At a minimum, ... these states [must] focus on an[d] articulate standards of competence for such” collateral proceedings). This requirement seems to be similar to the standard of “qualified legal counsel” set forth in the Anti-Drug Abuse Act of 1988, 21 U.S.C. Section 848. Cf. 21 U.S.C. § 848(q)(6) (at least one counsel appointed to represent indigent capital prisoner in federal post-conviction proceedings “must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases”). See also McFarland v. Scott, 512 U.S.-, -& n. 2, 114 S.Ct. 2568, 2571 & n. 2, 129 L.Ed.2d 666 (1994) (noting that § 848 sets standard for “qualified legal counsel” in federal post-conviction proceedings). The absence of the requisite competency standards is not remedied merely because the Supreme Court of Florida regulates the adequacy of CCR’s representation. In fact, the Supreme Court of Florida, like the highest courts of most (if not all) other states in the United States, ultimately supervise the quality of representation provided by members of the state bar. However, a plain reading of Section 2261(b) indicates that Congress wanted more than the general supervision of a state high court. Instead, a specific mechanism for competent counsel representing indigents in all post-conviction capital proceedings has to be established. Spalding, cited by Defendants, is inapposite because it simply holds that the capital collateral representative may “assert in individual cases his claims of inability to provide effective assistance of counsel.” 526 So.2d at 73 (emphasis added). No where does it refer to a system-wide set of competency standards. Spaziano, also cited by Defendants, has no relevance to the present inquiry. The Eleventh Circuit has recognized that “[cjapital habeas cases present district courts with complex and sometimes novel issues in subjects such as procedural default, cause and prejudice, and retroactivity.” Hill v. Jones, 81 F.3d 1015, 1021 (11th Cir.), reh’g and reh’g en banc denied, 92 F.3d 1202 (1996). Cf. Lonchar v. Thomas, — U.S. -,---, 116 S.Ct. 1293, 1298-99, 134 L.Ed.2d 440 (1996) (discussing the importance of imposing standards governing disposition of habeas applications before district courts because of the complex issues involved) (citing McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). Commentators agree with this assessment. It is axiomatic that the complexity of habeas proceedings “makes it unlikely that capital defendants will' be" able to file successful petitions for collateral relief without the assistance of persons learned in the law.” McFarland, 512 U.S. at -, 114 S.Ct. at 2572 (emphasis added) (quoting Murray v. Giarratano, 492 U.S. 1, 14, 109 S.Ct. 2765, 2772, 106 L.Ed.2d 1 (1989) (Kennedy, J., joined by O’Connor, J., concurring in the judgment)). See also Lonchar, — U.S. at-, 116 S.Ct. at 1302 (recognizing “the common practice of substituting specialized capital counsel for habeas” petitions filed by capital defendants) (emphasis added). Section 2261 reflects this line of thinking. Consequently, since the State of Florida does not have a statute or rule with a mechanism for ensuring “competent' counsel in State post conviction proceedings” is appointed for indigent capital defendants, it cannot qualify as an “opt-in” state under Chapter 154 of the Act. See 28 U.S.C. § 2261(b). Clearly “[providing competent counsel to represent death-sentenced individuals in postconviction [sic] proceedings is a necessary part of assuring a fair, prompt, and reliable outcome.” Shevin Report at 20 (emphasis in original). See also Remeta v. State, 559 So.2d 1132, 1135 (Fla.1990) (“The appointment of counsel in any setting would be meaningless without some assurance that counsel give effective representation.”) (emphasis added). b. Offer of counsel: Chapter 154 of the Act also requires •that a state have “a mechanism for the appointment, compensation, and payment of reasonable litigation expenses” of post-conviction counsel [28 U.S.C. § 2261(b)], and that an offer of such counsel must be made “to all State prisoners under capital sentence” [28 U.S.C. § 2261(c)]. As discussed below, it is uncertain whether Florida has provided adequate funding and allocation of resources for post-conviction counsel. However, the crux of Plaintiffs argument is that the large number of indigent capital prisoners who have accepted Florida’s offer of counsel, but have not yet been provided counsel (for whatever reason), also demonstrates that Florida has not opted in to Chapter 154. The Court concurs with this assessment. Since its creation in 1985, the Office of Capital Collateral Representative has precipitated several confrontations with the Supreme Court of Florida and the Florida Legislature over its supposed inability to provide counsel to indigents in post-conviction proceedings, due to inadequate funding. In 1988, CCR petitioned the Supreme Court of Florida for writ of mandamus or prohibition to stay all proceedings of capital defendants represented by CCR, until additional funds were allocated to CCR. See Spalding, 526 So.2d at 71-72. The petition was denied. Id. at 73. Similarly, in 1995, CCR asserted it could not provide effective assistance of counsel in post-conviction proceedings because it was “overworked and forced to labor under severe time constraints.” White v. Singletary, 663 So.2d 1324, 1325 (Fla.), cert. denied, - U.S. -, 116 S.Ct. 591, 133 L.Ed.2d 505 (1995). The Supreme Court of Florida again rejected this argument. See White, 663 So.2d at 1325. In June, 1995, Michael Minerva, the head of CCR, sought relief from Florida’s new one-year deadline for filing post-conviction motions in capital cases. See Fla.R.Crim.P. 3.851. Mr. Minerva also stopped designating counsel to represent death row inmates whose one-year deadline had started running (some forty cases), in large part because of the Supreme Court of Florida’s affirmance in 1994 of 46 new death penalty cases—twice the historical average. . The Supreme Court of Florida denied OCR’s motion for relief, but designated former Florida Attorney General Robert L. Shevin to determine whether CCR had the resources to handle any additional cases. Shevin Report at 1-2. Mr. Shevin recognized several factors beyond OCR’s control that were contributing to its inability to timely file post-conviction motions in compliance with Rule 3.851. For example, on March 1, 1996, federal funding for the Volunteer Lawyers’ Resource Center (“VLRC”) was terminated. The VLRC had provided representation (through the assistance of volunteer lawyers) to 41 death row inmates, 19 of which were “conflict cases” that could not be represented by CCR. Id. at 6-7. In addition, CCR itself historically had been underfunded and understaffed to deal with burgeoning ease loads. See id. at 7-9. This deficiency became especially clear when the number of death prisoners seeking post-conviction relief doubled in 1996. Id. at 9. Furthermore, the absence of a formal discovery mechanism for Rule 3.850 motions, tended to further delay the filing of those motions. Id. at 14-15. Finally, lack of funding to establish CCR branch offices, caused CCR to waste substantial hours of attorney and investigator time in travel throughout the rest of Florida. Id. at 15-16. CCR itself has also been partly responsible for its inability to keep up with the post-conviction workload. Mr. Shevin recognized that only 11 of CCR’s 20 attorneys were designated as “lead counsel,” and even among those attorneys there was a significant disparity in case assignments. See id. at 10-13. CCR was also criticized for its litigation tactic of raising issues that were proeedurally barred, meritless, or otherwise foreclosed by controlling law. Id. at 16. The Shevin Report further noted that “CCR lawyers believe that they must raise all legal issues” through “170-page motions that create unnecessary delays.” Id. at 16-17. A recent newspaper account also recognizes CCR’s abusive use of last-minute public records requests as yet another means to delay executions. See Debbie Salamone, Justices Pushing Rule to Speed up Death Rou> Appeals: They Think Appeal Attorneys are Stalling When They Make Late Requests for Public Records, Orlando Sentinel, Apr. 27, 1996, at C3. The Shevin Report suggested several steps to remedy these problems, including: requiring by court order that CCR assign counsel' for undesignated cases, with at least four cases being assigned each month -until the backlog is eliminated; requesting that the Florida Legislature provide additional funding of between $750,000 and $1 million to create a VLRC-type program to take over' the 41 cases formerly handled by VLRC; changing Florida Statutes Chapter 119, Florida’s public, records law, to expedite discovery requests made by CCR; requiring CCR attorneys to keep time records, to facilitate evaluation of CCR’s workload capability; and mandating that CCR alter its vexatious post-conviction. tactics. See Shevin Report at 21-24. The Supreme Court of Florida and the Florida Legislature adopted many of these recommendations. CCR was given funding for additional positions, including two attorneys who would act as conflict counsel. Hr’g Tr. at 12-14. Florida’s public records law was amended to prevent misuse of public records requests as a means to protract habeas proceedings. See Fla.Stat. § 119.07. The Supreme Court of Florida also began ordering CCR to assign counsel for capital defendants without representation in post-conviction proceedings, at the rate of four a month. See Ex. 2 to PI. ’s Br. Notwithstanding these improvements, Florida still has a substantial backlog of unassigned indigent defendants seeking post-conviction relief. See generally Jackie Hallifax & Ron Word, Penalty a Waiting Game Out of State’s Control, Tampa Trib., July 5, 1996, Florida/Metro' Sec., at 6 (discussing Florida’s continuing difficulty in securing counsel for death inmates). Currently, at least forty (40), indigent individuals under final sentence of death are without counsel. CCR represents that these individuals are: Anthony Mungin, Robin Archer, Mark Geralds, Aileen Wuornos (I & II), Henry Garcia, Ernest Suggs, Lancelot Armstrong, George Brown, David Pittman, Charlie Thompson, Harry Jones, Noberto Pietri, John Henry (I & II), Ronald Heath, Rodney Lowe, Victor Jones, Thomas Wyatt (II), Kenneth Watson, Gary Whitton, Henry Davis, Michael Lockhart, Kenneth Foster, Jimmie Coney, Victor Farr, Anthony Washington, Brett Bogle, Curtis Windom, Darryl Bar-wick, James Dailey, Charles Finney, Guy Gamble, James Hunter, Lloyd Allen, Emanuel Johnson (I & II), Michael Coleman, Henry Espinosa, Donald Dillbeck, Ronald Williams, Marvin Johnson, and Thomas Pope. See PL’s Br. at 23; PL’s Ex. 1. In addition, CCR states that there are several individuals who were represented by VLRC, and are now without post-conviction counsel. Id. at 23-24. Furthermore, there are at least seven (7) unrepresented death prisoners who have accepted Florida’s offer of counsel, but cannot be represented by CCR because of conflict problems with other CCR clients. Even in the face of this backlog, Defendants contend that Florida has “a mechanism for the appointment, compensation, and payment of reasonable litigation expenses” of post-conviction counsel, and the offer of counsel is made to all capital defendants. Defendants correctly point out that Florida Statutes Chapter 27 outlines appointment, compensation, and conflict representation procedures. Based on this framework, Defendants conclude that “[t]he ... Florida statutes are prima facia evidence that the State has complied with the Act, and Plaintiff has failed to sustain his burden of proof to demonstrate otherwise ...” Doc. 14 at 9 (emphasis in original). The Court rejects Defendants’ argument. Chapter 154 of the Act expressly requires “entry of an order by a court of record ... appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer ...” 28 U.S.C. § 2261(c)(1) (emphasis added). As a result, once a qualified capital defendant accepts a statutory offer of counsel, that counsel must be appointed immediately. The Ashmus court reached the same conclusion, relying in large part upon the language of the report accompanying an earlier version of the Act. See Ashmus, 935 F.Supp. at 1057. This report stated: “At a minimum, the immediate benefits to defendants would include the requirement that states electing these procedures actually appoint counsel for the collateral proceedings.” 137 Cong.Rec. S3220 (daily ed. March 13,1991). Indeed, to hold otherwise would render the statutory provisions for compensation and appointment of counsel meaningless. By comparison, when the Supreme Court of Florida adopted Florida Rule of Criminal Procedure 3.851, which reduced the time for filing post-conviction motions in capital cases from two years to one year, the Justices noted concern over the need for immediate appointment of counsel: The [Supreme Court Committee on Post-conviction Relief in Capital Cases] recommended that specific named counsel should be designated to represent each prisoner not later than 30 days after the defendant’s judgement and sentence of death becomes final. To assure that representation, the committee’s report noted that it was essential that there be adequate funding ... There is a justification for the reduction of the time period for a capital prisoner ... A capital prisoner will have counsel immediately available to represent him or her in a postconviction relief proceeding ... In the event the capital collateral representative is not fully funded and available to provide proper representation for all death penalty defendants, the reduction in time period would not be justified and would necessarily have to be repealed---- In re Rule of Criminal Procedure 3.851, 626 So.2d 198, 199 (Fla.1993) (per curiam) (emphasis added). See also id. at 200 (Overton, J., concurring) (one year time period to initiate p'ostconviction proceedings for capital defendant “who has counsel ready and available to represent him or her” is reasonable) (emphasis added); id. at 201 (Barkett, J., joined by Kogan, J., dissenting) (“The new time limits are conditioned on an understanding that each death-sentenced prisoner will have a specific lawyer, whether affiliated with CCR or not, assigned and available to begin addressing the prisoner’s postconviction issues within thirty days after the judgment and sentence becomes final.”) (emphasis added). Clearly, the Justices’ concern has even greater force with respect to a statutory provision that would cut in half the filing requirements under Rule 3.851. See generally id. at 200 (Overton, J., concurring) (noting that new Rule 3.851 “also gives a defendant twice as long as the six-month period suggested in the Powell Committee Report.”). Therefore, the Court holds that any offer of counsel pursuant to Section 2261 must be a meaningful offer. That is, counsel must be immediately appointed after a capital defendant accepts the state’s offer of post-conviction counsel. The present backlog of unrepresented capital defendants who are in a position to seek post-conviction review, demonstrates that Florida has not made the requisite meaningful offer of counsel. Consequently, Florida cannot qualify as an “opt-in” state for this reason as well. c. Summary: Based upon the foregoing analysis, the Court must preliminary find that Plaintiff has shown a substantial likelihood of success on the merits. B. Substantial threat of irreparable injury: “District courts have broad discretion to evaluate the irreparability of alleged harm and to make determinations regarding the propriety of injunctive relief.” Wagner v. Taylor, 836 F.2d 566, 575-76 (D.C.Cir. 1987). In order to establish irreparable injury, a plaintiff must show that his injury is “neither remote nor speculative, but actual and imminent.” In addition, “[a]n injury is ‘irreparable’ only if it cannot be undone through monetary damages.” Northeastern Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990) (internal citations omitted). If a preliminary injunction is the only way to protect the plaintiff from harm by the defendant, then the plaintiff has satisfied the irreparable injury requirement for injunctive relief. See, e.g., Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir.1987). As shown in greater detail in section 11(A)(2), supra, Plaintiff faces actual and imminent injury. Plaintiffs injuries, which include possible procedural bars in his habeas proceedings, cannot be undone through monetary damages. Consequently, Plaintiff has demonstrated the requisite irreparable harm. C. Weighing injuries to Plaintiff and Defendants: In light of Plaintiff’s likelihood of success on the merits, Plaintiff stands to suffer far greater harm than the Defendants. In the absence of preliminary relief, Plaintiff will be unable to determine the best course of action to protect his statutory and constitutional rights. Preliminary relief will also ensure that the status quo is maintained pending an orderly and expedited resolution of the merits of the Plaintiffs request for declaratory, and injunctive relief. Conversely, preliminary relief will not cause undue hardship to the Defendants. The Defendants undoubtedly have a strong interest in a just and speedy resolution of all federal habeas proceedings. However, it appears likely that Chapter 154 of the Act does not apply to post-conviction proceedings in the State of Florida. Consequently, if the Court requires Plaintiff to submit to the procedural requirements of Chapter 154, and those requirements are later found to be inapplicable, Plaintiff would presumably be in a position to demand that his federal habeas clock begin running anew—in accordance with the appropriate governing procedures. Therefore, granting the preliminary injunction actually tends to further, rather than detract from, Florida’s interest in securing the earliest possible finality in its capital decisions. D. Whether injunction would disserve the public interest: “The most compelling reason in favor of [granting a preliminary injunction] is the need to prevent, the judicial process from being rendered futile by defendant’s action or refusal to act.”. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2947, at 123. See also Productos CaRNic, S.A v. Central Am. Beef & Seafood Trading Co., 621 F.2d 683, 686 (5th Cir. 1980) (affirming district court’s decision that preliminary injunction was necessary to prevent defendants’ conduct from frustrating judgment on the merits of the underlying controversy). As discussed in the balancing of the parties’ interests, supra, Defendants’ improper application of Chapter 154 of the Act to Plaintiffs habeas petition, could very well nullify any result obtained in those proceedings. The public’s interest therefore militates in favor of granting the requested preliminary injunctive relief. III. CONCLUSION Defendants have argued that it is not this Court’s province to oversee Florida’s capital collateral agency. Hr’g Tr. at 19. The Court agrees. However, Plaintiff is not asking the Court to do that. Instead, Plaintiff seeks a judicial determination of whether the type of counsel the State of Florida provides to indigent capital defendants prisoners in post-conviction proceedings, as well as statutes and rules of court governing appointment and qualifications of such counsel, allows Florida to take advantage of the procedural benefits of Chapter 154. The Court may make such a determination without dictating matters of policy and finance to the Florida Legislature. In preliminarily finding that Florida does not qualify as an “opt-in” state, the Court is not unsympathetic to the position of the State Defendants. The Act was passed in large part to curb abusive and repeated use of a habeas petition process that has rendered the death penalty a virtual nullity not only in Florida, but throughout the United States. The judicial system has permitted many prisoners to sit on death row for years or even decades after their capital convictions and direct appeals of those convictions have become final. In fact, Plaintiff himself is a paradigm example of the system’s many flaws. Thirteen years after his conviction and sentence, Mr. Hill is still litigating his appeals in federal court. Clearly, the State of Florida and its residents have a substantial interest in obtaining some degree of finality in decrees of death for prisoners such as the Plaintiff. Nevertheless, as the discussion above has demonstrated, the State of Florida does not appear to be in a position to., take advantage of the many benefits conferred by Chapter 154 of the Act. This ruling, at such an early stage of these proceedings, is premised on the preliminary findings that Florida has failed to ensure the competency of post-eonviction counsel, and has not provided a meaningful offer of counsel to capital defendants. As a result, it appears that the State of Florida has failed to fully comply with the requirements for post-conviction review set forth in 28 U.S.C. § 2261. In finding that Plaintiff is entitled to preliminary relief, the Court is mindful that Defendants will likely want immediate review of this ruling by the Eleventh Circuit. See generally 28 U.S.C. § 1292(a)(1) (a district court’s order granting an injunction is an interlocutory decision that may be appealed to the court of appeals). If Defendants intend to seek such review, the Court will entertain any motions to stay imposition of the prehminary injunctive decree, so long as they are filed within 10 (ten) days of this order. However, in so holding, the Court is also keenly aware that far too often such interim appellate review has been used to further protract the underlying habeas proceedings. The Court does not intend to allow the instant case to serve as a vehicle for delaying resolution of the requests for habeas relief by Plaintiff, or any other indigent capital defendant. In addition, the Court notes that the ultimate determination of whether Florida may take advantage of the procedural benefits conferred under Chapter 154 of the Act does not require a complex factual or legal inquiry. Consequently, discovery-will proceed on an expedited basis during the pendency of any appeal, and a date certain shall be set for a final hearing on the merits