Sallie (DEATH PENALTY) v. Humphrey

Filing 121

ORDER GRANTING in part and DENYING in part 116 Petitioner's Application for Authorization of Funds for Investigative Funds. The Court authorizes $7,500.00 "to obtain future investigative services." The Court orders Petitioner to file any motion to amend his habeas petition and/or motion to stay these habeas proceedings within 45 days from the date of this Order. Ordered by Judge Marc Thomas Treadwell on 3/25/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

WILLIAM CARY SALLIE,
Petitioner,
vs.
CARL HUMPHREY, Warden,
Respondent.

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CIVIL ACTION NO.: 5:11-CV-75 (MTT)

ORDER
Before the Court is Petitioner’s Application for Authorization of Funds for
Investigative Services. (Doc. 116).
18 U.S.C. § 3599(f) provides:
Upon a finding that investigative, expert, or other services are reasonably
necessary for the representation of the defendant, whether in connection
with issues relating to guilt or the sentence, the court may authorize the
defendant’s attorneys to obtain such services on behalf of the defendant
and, if so authorized, shall order the payment of fees and expenses therefor
under subsection (g).
Subsection (g) provides that fees and expenses for investigative or other expert services
shall not exceed $7,500.00 in any case unless the court certifies the payment in excess of
that limit is “necessary to provide fair compensation for services of an unusual character
and duration, and the amount of the excess payment is approved by the chief judge of the
circuit.” 18 U.S.C. § 3599(g).
The Eleventh Circuit has explained that the phrase “reasonably necessary” in
§ 3599(f) means the same as showing a “substantial need” for the requested assistance.
Gary v. Georgia Diagnostic Prison, 686 F.3d 1261, 1268 (11th Cir. 2012) (quoting United
States v. Brown, 441 F.3d 1330, 1364 (11th Cir. 2006)).

Petitioner seeks $10,000.00 “to obtain future investigative services” to investigate
newly-discovered claims of juror bias and misconduct. (Doc. 116 at 15). Petitioner
alleges he has uncovered information which reveals “dramatic discrepancies between”
juror Gina Dawson’s personal background and her responses during the jury selection
process. (Doc. 116 at 6). He claims that further investigation into her background is
necessary to determine if her responses during voir dire were untruthful and, if so, would
truthful responses have provided a basis to challenge for cause. Petitioner admits that
his anticipated juror bias and misconduct claims are not exhausted and, if the
investigation confirms the existence of material misrepresentations, he will have to file a
motion to stay under Rhines v. Weber, 544 U.S. 269 (2005).
Respondent claims that Petitioner is merely trying to “further delay these habeas
proceedings” and funds for additional investigation are not needed because Petitioner
has already spoken to Juror Dawson. (Doc. 117 at 2). Respondent has also contacted
Juror Dawson, had her review her voir dire testimony, and had her sign an affidavit in
which she states that her testimony during voir dire was true and accurate. (Doc. 117 at
2-3; Doc. 117-1 at 2).
In response to Juror Dawson’s affidavit, Petitioner claims that he has “arrays of
facts that plainly contradict” her assertions of truthfulness. (Doc. 118 at 1). Petitioner
states that Juror Dawson’s “sustained insistence on the accuracy and truthfulness of voir
dire testimony . . . cannot be reconciled with information uncovered to date about her
personal history.” (Doc. 118 at 2).
Since Petitioner admits he has already uncovered many facts to show that Juror
Dawson provided dishonest responses during voir dire, it is difficult to understand why he
currently needs $10.000.00 to pay for “future investigative services.” (Doc. 116 at 15).
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This is especially true in light of the fact that this Court will not be addressing the merits of
any unexhausted claims. Thus, at this time, Petitioner need not establish that Juror
Dawson failed to honestly answer a material question during voir dire and that a truthful
response would have provided a valid basis for a challenge for cause. McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Instead, all he must show
is that the unexhausted claims are “potentially meritorious,” which means they are not
“plainly meritless.” Rhines, 544 U.S. at 277-78. Beyond this, Petitioner need only
establish that he has good cause for failing to exhaust and that he has not “engaged in
intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.
While the Court finds that Petitioner has shown investigative services are
reasonably necessary, his request for $10,000.00 is excessive. The Court authorizes
$7,500.00 “to obtain future investigative services.” (Doc. 116 at 15). Because it is
apparent to the Court that Petitioner has already devoted considerable time to these
issues, the Court does not foresee a situation in which it would authorize additional funds.
Moreover, the Court will not authorize Petitioner to make any supplemental application for
funds “confidentially, ex parte and under seal, without needing to seek leave of the Court.”
(Doc. 116 at 15). 18 U.S.C. § 3599(f) does not allow such requests without a proper
showing concerning the need for confidentiality. Finally, the Court orders Petitioner to
file any motion to amend his habeas petition and/or motion to stay these habeas
proceedings within 45 days from the date of this Order.
SO ORDERED this 25th day of March, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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