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Green v. Davis

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

March 27, 2018

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

         Death Penalty Case

          ORDER OVERRULING OBJECTIONS AND ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          BARBARA M. G. LYNN CHIEF JUDGE

         The United States Magistrate Judge made Findings, Conclusions, and a Recommendation (“FCR”) in this case to deny Petitioner's opposed post-petition motion for funding (doc. 42). Objections were filed by appointed counsel for Petitioner. The District Court reviewed de novo those portions of the FCR to which objection was made, and reviewed the remaining portions for plain error. Finding no error, the Court OVERRULES the objections, and ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge.

         I. MOTION

         This is Green's second motion for funding. As in the first motion, Green states that trial counsel did not hire a qualified mitigation investigator and that the mitigation investigation was inadequate. (Mot. at 6-9.) Green again seeks $27, 000 to hire Dr. Gilda Kessner to answer the same questions regarding 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. (Mot. at 27-28 (repeating language in prior motion quoted in this Court's prior order, doc. 22).) Green also seeks an additional $12, 380 to hire Dr. Ollie J. Seay to evaluate Green for intellectual disability specifically as it pertains to his adaptive deficits. (Mot. at 23-24, 28.)

         The Magistrate Judge found that Green had not shown that the funding he seeks would support a viable constitutional claim that is not procedurally barred and that is not meritless. She found that the request for funding to hire Dr. Kessner presents the same defect set out in Green's original funding motion, that the sought investigative assistance would only create a potential disagreement between experts rather than showing prior counsel ineffective. The Magistrate Judge also found that the exception to procedural bar created in Martinez v. Ryan, 566 U.S. 1 (2012), did not warrant funding. (FCR at 6.) The Magistrate Judge also found that the record belies the allegation that prior counsel were ineffective in failing to investigate Green's intellectual disability. (FCR at 7.) Regarding the request for funding to investigate intellectual disability, the Magistrate Judge also found that the submitted IQ score was above the range for intellectual disability. (FCR at 8.)

         II. ANALYSIS

          A. Standard

         Since the FCR was issued, the Supreme Court has overturned the circuit standard. “What the statutory phrase calls for, we conclude, is a determination by the district court, in the exercise of its discretion, as to whether a reasonable attorney would regard the services as sufficiently important, guided by the considerations we set out more fully below.” Ayestas v. Davis, No. 16-6795, 2018 WL 1402425, at *10 (Mar. 21, 2018). When seeking such funds to bring claims under Martinez and “[i]n those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.” Id., 2018 WL 1402425, at *11. Even so, “Congress changed the verb from “shall” to “may, ” and thus made it perfectly clear that determining whether funding is “reasonably necessary” is a decision as to which district courts enjoy broad discretion.” Id., 2018 WL 1402425, at *11 (citing Kingdomware Technologies, Inc. v. United States, 136 S.Ct. 1969, 1977 (2016)). This involves practical considerations regarding the likelihood that funding will enable an applicant to prove his or her claim.

A natural consideration informing the exercise of that discretion is the likelihood that the contemplated services will help the applicant win relief. After all, the proposed services must be “reasonably necessary” for the applicant's representation, and it would not be reasonable-in fact, it would be quite unreasonable-to think that services are necessary to the applicant's representation if, realistically speaking, they stand little hope of helping him win relief. Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.
To be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. But the “reasonably necessary” test requires an assessment of the likely utility of the services requested, and § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.

Id., 2018 WL 1402425, at *11. But this is not an entirely new inquiry.

These interpretive principles are consistent with the way in which § 3599's predecessors were read by the lower courts. See, e.g., Alden, supra, at 318-319 (explaining that it was “appropriate for the district court to satisfy itself that [the] defendant may have a plausible defense before granting the defendant's ... motion for psychiatric assistance to aid in that defense, ” and that it is not proper to use the funding statute to subsidize a “ ‘fishing expedition' ”); United States v. Hamlet,480 F.2d 556, 557 (C.A.5 1973) (per curiam) (upholding District Court's refusal to fund psychiatric services based on the District Court's conclusion that “the request for psychiatric services was ... lacking in merit” because there was “no serious possibility that ...

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