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Green v. Davis

United States District Court, N.D. Texas, Dallas Division

February 28, 2018

GARY GREEN, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional Institutions Division, Respondent.



         By Special Order 3-251, this death penalty habeas case has been automatically referred for findings, conclusions, and recommendation. Before the Court is the Postpetition Motion for Funding Based on Additional Evidence and Intervening Supreme Court and Fifth Circuit Caselaw, filed on June 17, 2017 (doc. 42). Based on the relevant filings and applicable law, the motion should be denied.

         I. BACKGROUND

         This is the second motion for funding filed in this case. Petitioner Gary Green (“Green) previously sought funding in the amount of $27, 000 for expert or investigative assistance by Dr. Gilda Kessner to conduct a new mitigation investigation in order to support a claim that trial counsel was ineffective in failing to investigate and present mitigating evidence at his trial. (Doc. 8 at 4-5, 21-22.) Green argued that funding was needed to develop this claim because it was not presented to the state court and now came within the exception to procedural bar created in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). (Pre-Pet. Mot. at 19-21.) Respondent disputed both arguments. (Resp., doc. 10, at 2-7.)

         Green initially did not show that the claim had not been presented in the state habeas proceedings, that the state habeas counsel was ineffective, or that the claim had any merit. Although he presented more records in connection with his objections to the recommended denial of his motion, funding was denied regardless of whether the claim had been exhausted because the proposed investigation could not establish a claim of ineffective assistance of counsel.

As observed by the Magistrate Judge, favorable answers to the questions that Petitioner sought expert assistance to answer would not show that trial counsel was ineffective. “Petitioner seeks expert assistance to determine whether the ‘evaluation conducted by the defense mental health experts at trial' was ‘adequate under the standards required for forensic mental health evaluations' in connection with a possible claim that trial counsel was ineffective.” (FCR at 5-6 (quoting doc. 8 at 4).) Favorable answers to these questions may potentially create a disagreement among experts, but would not show that counsel was ineffective. (FCR at 6-7 .)

(Order, doc. 22, at 5-6 (quoting FCR, doc. 14).) After the recommendation to deny funding was made, but before it was adopted, Green filed his petition for habeas relief. (Petition, doc. 17.)

         II. ANALYSIS

         Approximately one year after his petition was filed and the limitations period for filing a claim for habeas relief ended, Green moved for funding in the amount of $39, 380, including the same $27, 000 previously requested for the mitigation investigation by Dr. Gilda Kessner as well as an additional $12, 380 for an investigation by Dr. Ollie J. Seay to assess his adaptive behavior in connection with an intellectual disability claim. (Motion, doc. 42, at 28.) Respondent opposes the motion, arguing that it has the same defects as Green's prior funding motion and seeks funding to investigate claims that were adjudicated on the merits by the state court, and that an investigation would not show an entitlement to relief. (Resp., doc. 44, at 3-5.) She also argues that Green's claims are meritless. (Resp. at 5-10.) Green replies that the same claims are not the same ones presented to the state court, state habeas counsel did not obtain an expert assessment of whether he showed adaptive deficits or met the diagnostic criteria for intellectual disability, and he should not be required to prove the merits of his claim, or show it is substantial, before he is provided the necessary funding to do so. (Reply, doc. 47, at 1-6.) Green also argues that a case pending before the Supreme Court will overturn the standard for funding applied in this Circuit. (Reply at 4-5.)

         A. State Court Proceedings

         In his postconviction application for writ of habeas corpus filed in the state court, Green made twenty claims, including several complaints against trial counsel for ineffective assistance. (State Habeas Record (“SHR”) at 31-356.) In his first ground for relief, Green complained that trial counsel failed to conduct an adequate mitigation investigation. (SHR at 31-59.) Green also complained in his second, third and fourth grounds that trial counsel failed to adequately develop and present the lay and expert witness testimony at trial that would have supported his mitigation case. (SHR at 60-162.) In his fifth and sixth grounds, Green complained that trial counsel failed to present a full history of his life and failed to present the testimony of a competent social historian during the punishment phase of trial. (SHR at 163-212.) In his seventh ground, Green complained that trial counsel failed to adequately rebut the state's evidence in aggravation of punishment. (SHR at 213-21.) In his eighth ground, Green complained that trial counsel failed to present evidence that he would not be a future danger. (SHR at 222-31.) In his fourteenth ground, Green complained that trial counsel were ineffective for failing to present evidence of intellectual disability[1] and evidence of his low mental functioning to the jury as a mitigating factor during the punishment phase. (SHR at 288-306.)

         The state court found that Green failed to prove his relevant allegations of ineffective assistance of trial counsel, that his claim of intellectual disability was procedurally barred, and in the alternative, lacked merit, and the state court denied habeas relief. (SHR at 611-55, 671-76); Ex parte Green, No. WR-81, 575-01, 2015 WL 3899220 (Tex. Crim. App. June 24, 2015).

         B. Standard for Funding

         Funding may be authorized for attorneys in death penalty cases to obtain investigative, expert, or other services upon a finding that such services are “reasonably necessary” for representation. See 18 U.S.C. § 3599(f). In the Fifth Circuit, the term “reasonably necessary” is construed to mean that a petitioner must demonstrate “a substantial need” for the requested assistance. Riley v. Dretke,362 F.3d 302, 307 (5th Cir. 2004) (quoting Clark v. Johnson,202 F.3d 760, 768 (5th Cir. 2000)) ...

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