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Crutsinger v. Davis

United States District Court, N.D. Texas, Fort Worth Division

June 5, 2017

BILLY JACK CRUTSINGER, PETITIONER,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, RESPONDENT.

          MEMORANDUM OPINION AND ORDER DENYING AUTHORIZATION FOR DNA EXPERT

          TERIO R. MEANS, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Billy Jack Crutsinger's Opposed Motion for Services of DNA Expert to Conduct Preliminary Review, filed under 18 U.S.C. § 3599 on April 27, 2017. [ECF No. 72, "Motion."] The Motion requests funds for an unnamed analyst at Bode Cellmark to conduct a case review and prepare an affidavit, which would likely be used by counsel to seek additional funding to perform DNA testing.

         Respondent opposes the Motion because Crutsinger has not made allegations for which the services could be deemed "reasonably necessary" under the statute. Respondent also asserts that the Court may not have jurisdiction to grant funding for a successive habeas petition. [ECF No. 73.] In his reply, Crutsinger argues that the Court has jurisdiction under both Supreme Court and circuit case law and points out that the "substantial needs" test, often used in this circuit to determine what are "reasonably necessary" services, is pending Supreme Court review. [ECF No. 74, "Reply."]

         Neither the motion nor the response address the fact that there is a Texas statute that sets out a procedure for obtaining post-conviction DNA testing and provides counsel for that purpose. This raises the question of whether federal habeas counsel and federally-funded expert services can and should be used for DNA testing. As explained below, the Court answers this question in the negative and denies the motion for that reason. In the alternative, the Court concludes Crutsinger has not shown a reasonable necessity for the requested services.

         I. Background

         In 2003, a Tarrant County jury convicted Crutsinger of capital murder and sentenced him to death. His direct appeal, as well as state and federal habeas corpus proceedings, are now concluded. See Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. App.), cert, denied, 549 U.S. 1098 (2006); Ex parte Crutsinger, No. WR-63, 481-01, 2007 WL 3277524 (Tex. Crim. App. Nov. 7, 2007) (not designated); Crutsinger v. Stephens, 576 F.App'x 422 (5th Cir. 2014), cert, denied, 135 S.Ct. 1401 (2015).

         Crutsinger's crime involved the stabbing deaths of 89-year-old Pearl Magouirk and her 71-year-old daughter, Patricia Syren, in their Fort Worth home. Both victims suffered multiple stab wounds and had their throats cut. A broken knife was found in the victims' bathroom, and blood evidence suggested the killer had been injured when it broke. Syren's Cadillac was taken from the home and later found abandoned at a bar. A DNA analyst testified at trial about biological samples taken from the broken knife, the victims' clothing, the interior of the abandoned Cadillac, men's clothing found in a trash dumpster near the abandoned Cadillac, and blood stains throughout the victims' home and garage. The analyst associated some samples with either Crutsinger or the victims, but she also identified "mixture" samples containing DNA associated with both Crutsinger and one or both victims.

         In a letter dated July 8, 2016, the Tarrant County district attorney ("DA") advised Crutsinger that his case "may potentially be implicated" by (1) a change in the DNA-mixture interpretation protocol and (2) the FBI's "recent amendment of its population database" (emphasis in original). (Motion, Ex. A.) The letter stated that the probability statistics could be recalculated using the FBI's updated database, but that the DA's office had to investigate options for reinterpreting the evidence using the updated protocol. The letter was sent to Crutsinger's attorney of record, Lee B. Kovarsky of Baltimore, Maryland.

         On March 17, 2017, the DA sent another letter to Mr. Kovarsky, advising that the DA's office had been unable to obtain a reinter-pretation of the DNA-mixture profiles because the medical examiner's office is no longer proficiency tested using the necessary amplification kits. (Motion, Ex. B.) The letter further stated that the DA would move the trial court to set an execution date because Crutsinger's conviction is supported by "significant DNA evidence not impacted by the changed mixture interpretation protocol, " as well as significant non-DNA evidence.

         The instant motion was filed by federal habeas counsel, Lydia Brandt, who was appointed by the Court in 2008 under 18 U.S.C. § 3599(a) (2) to prepare and file Crutsinger's federal petition for habeas-corpus relief under 28 U.S.C. § 2254. The motion requests $500 to retain Bode Cellmark to review the case and provide potential options for having the DNA-mixture profiles reinterpreted. Once the preliminary review is conducted, Crutsinger advises that he may seek additional funding from the Court to perform the actual testing. (Motion, p. 1.) Crutsinger asserts that this request is relevant to his representation in executive clemency proceedings and to potential habeas applications that he may file in state and federal court. (Motion, p. 2.)

         II. Statutory provisions for federal habeas counsel and related services

         A state prisoner under a sentence of death, who petitions for habeas relief under § 2254 and is financially unable to obtain adequate representation or "investigative, expert, or other reasonably necessary services, " is entitled to the appointment of counsel and the furnishing of such services. See § 3599(a) (2). Section 3599(e) further provides that federal counsel so appointed "shall represent the defendant throughout every subsequent stage of available judicial proceedings, " which includes "all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, " and "in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." § 3599(e) .

         As for services other than counsel, a district court may authorize expenditures up to $7, 500 for investigative, expert, or other services that the district court finds to be ...


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