Lucas(DEATH PENALTY) v. Upton
Filing
83
ORDER granting #82 Motion for Leave to Proceed Ex Parte and Under Seal. Ordered by U.S. District Judge C ASHLEY ROYAL on 2/3/15 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DANIEL ANTHONY LUCAS,
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Petitioner,
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vs.
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: CIVIL ACTION NO. 5:09‐CV‐289 (CAR)
WARDEN, Georgia Diagnostic and
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Classification State Prison,
:
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Respondent.
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________________________________
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ORDER
Pending before the Court is Petitioner’s Unopposed Motion for Leave to Proceed
Ex Parte and Under Seal Regarding Application for Authorization of Funds for
Investigative Services. (Doc. 82).
On March 25, 2013, this Court denied Lucas’s 28 U.S.C. § 2254 petition. (Doc. 66).
The Eleventh Circuit affirmed the denial on November 12, 2014 and denied a motion for
rehearing on January 20, 2015. Lucas v. Warden, 771 F.3d 785 (11th Cir. 2014); (Doc. 82 at
2) Lucas still has time to file a petition for writ of certiorari with the United States
Supreme Court. Sup. Ct. R. 13. Lucas’s appointed counsel indicates that if she is
unsuccessful in obtaining relief through the habeas proceedings, she will seek clemency.
(Doc. 82 at 2).
A clemency hearing is not scheduled; nor is Lucas’s execution scheduled.
However, “substantial lead time is required to fully investigate and develop grounds for
clemency.” (Doc. 82 at 2). Counsel has met with an investigator and maintains that
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she “needs the investigator’s services to assist [her] in developing evidence to support
[Lucas’s] anticipated clemency petition.” (Doc. 82 at 3). Lucas seeks to petition the
Court ex parte for approval of the investigator’s fees and Respondent does not oppose the
ex parte request.
Before the Court can consider an ex parte request, a “proper showing” must be
“made concerning the need for confidentiality.” 18 U.S.C. § 3599(f). United States v.
Gonzales, 150 F.3d 1246, 1264 (10th Cir. 1998) (explaining that with the adoption of
AEDPA, 1 Congress changed the presumption from an ex parte hearing for expert
services to a process that is not to be held ex parte unless a proper showing is made
concerning the need for confidentiality). Lucas has not cited, and the Court has not
found, an Eleventh Circuit case articulating the proper procedure for applying for expert
assistance under this statute. Other courts have adopted the following procedure:
First, Petitioner must file and serve a concise motion seeking authorization
for investigative or expert assistance that includes a short, case‐specific
statement of the need for confidentiality. This statement of the need for
confidentiality must generically identify the type of services needed and
the broad issue or topic (for example innocence) for which the services are
needed. Second, Petitioner must simultaneously file ex parte and under
seal his detailed application for authorization for the investigator or expert.
In this application, Petitioner must estimate the amount of fees or expenses
likely to be incurred and provide factual support for the funding request.
The motion – but not the application with supporting materials – must be
served upon Respondent.
Shields v. Johnson, 48 F. Supp. 2d 719 (S. D. Tex. 1999); Patrick v. Johnson, 37 F. Supp. 2d
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The Antiterrorism and Death Penalty Act of 1996.
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815 (N. D. Tex. 1999).
Lucas has filed and served a motion seeking authorization for investigative
assistance that includes a statement of the need for confidentiality and has forwarded to
the Court an ex parte detailed application with an estimate of fees and expenses likely to
be incurred. (Doc. 82). After considering the information contained in Lucas’s motion
and, importantly, Respondent’s lack of opposition to Petitioner’s request to proceed ex
parte, the Court finds Lucas has made a sufficient showing to justify ex parte
consideration of his underlying request for expert assistance.
Therefore, the Court GRANTS Petitioner’s unopposed Motion for Leave to
Proceed Ex Parte and Under Seal Regarding Application for Authorization of Funds for
Investigative Services. (Doc. 82).
SO ORDERED, this 3rd day of February, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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