Howell v. Fisher et al

Filing 12

ORDER denying 10 Motion for Funding. Signed by District Judge Debra M. Brown on 9/8/15. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

MARLON HOWELL
V.

PETITIONER
CIVIL ACTION NO. 3:15CV105-DMB

MARSHALL FISHER and
JIM HOOD

RESPONDENTS

ORDER DENYING PETITIONER=S MOTION FOR FUNDING
Before the Court is Petitioner Marlon Howell=s motion for investigative assistance
pursuant to 18 U.S.C. § 3599(f), which he has supplemented with an in camera memorandum.
Respondents have objected to the motion, maintaining that Petitioner has failed to make the
proper showing of the need to proceed ex parte and arguing that he otherwise is seeking
authorization for funding to pursue claims that are barred from consideration in this Court.
This Court may authorize funds for investigative or expert services only upon a showing
that the services are Areasonably necessary@ for Petitioner=s representation.

18 U.S.C. § 3599(f).

Such services are Areasonably necessary@ if a Asubstantial need@ for the assistance is shown.
Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004). However, the Court cannot authorize funds
for Afishing expeditions.@ Mamou v. Stephens, No. 4:14cv403, 2014 WL 4274088, at *6 (S.D.
Tex. Aug. 28, 2014). Additionally, the authorization of funding is not appropriate in order to
supplement prior evidence, or to support a meritless or procedurally barred claim.

Ward v.

Stephens, 777 F.3d 250, 265-66 (5th Cir. 2015) (citation omitted).
Petitioner is under a sentence of death for killing David Pernell during an attempted
robbery.

He requests that this Court authorize funding so that he may obtain the services of a

mitigation specialist and a fact investigator to assist him in preparing his federal habeas petition.

In support of his motion, Petitioner maintains that he was never provided investigative assistance
in state court, and states that federal habeas counsel Ahas identified several defaulted claims
which require further investigation.@ Doc. # 10 at 1-2.

He asserts that the errors leading to

these purportedly defaulted claims arose in both the guilt phase and sentencing phase of his trial,
and alleges that neither his trial counsel nor post-conviction counsel performed a thorough
investigation.

Petitioner further contends that the Supreme Court=s decisions in Martinez v.

Ryan and Trevino v. Thaler permit federal habeas examination of his unexhausted and defaulted
claims if he can demonstrate that the ineffectiveness of post-conviction counsel was the cause for
the default. See Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (AWhere under state law, claims
of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding,
a procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.@); Trevino v. Thaler, 133 S. Ct. 1911 (2013)
(extending Martinez holding to Texas cases).

Therefore, Petitioner claims, his request for

funding is necessary in order for him to present for federal habeas review “the full defense he
was entitled to at trial.” Doc. # 10 at 3.
The Court notes that Martinez=s holding does not apply to claims already adjudicated on
the merits. See Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014) (holding that once
claim is considered and denied on merits by state habeas court, Martinez is inapplicable).
Rather, once a claim is considered on its merits by a state court, federal review is limited to that
record which was before the state court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(A[R]eview under ' 2254(d)(1) is limited to the record that was before the state court that
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adjudicated the claim on the merits.@); Escamilla, 749 F.3d at 395 (A[O]nce a claim is considered
and denied on the merits by the state habeas court, Martinez is inapplicable, and may not
function as an exception to Pinholster=s rule that bars a federal habeas court from considering
evidence not presented to the state habeas court.@); see also 28 U.S.C. ' 2254(d)(2) (limiting
federal review to Athe evidence presented in the State court proceeding@).
The written opinions of the Mississippi Supreme Court indicate that some evidence was
produced during the proceedings in this case, despite the lack of funding from the State. See,
e.g., Howell v. State, 860 So. 2d 704, 720 (Miss. 2003) (noting limited investigation was
performed regarding State’s witnesses); Howell v. State, 989 So. 2d 372, 381, 390 (Miss. 2008)
(referencing Petitioner=s production of affidavits from lighting and perceptions expert, fingerprint
expert, and purported firearms expert); id. at 394 (referencing Petitioner=s school records, which
were produced on post-conviction review).

Additionally, Petitioner presented, and the

Mississippi Supreme Court addressed on their merits, approximately twelve claims that trial
and/or appellate counsel rendered ineffective assistance. See Howell v. State, 989 So. 2d 372,
381-96 (Miss. 2008). One such ineffective assistance claim was that trial counsel failed to
develop and present mitigation evidence at trial. Id. at 393-94.
In this case, the Court is uncertain whether Petitioner desires funding to support an
investigation to raise new claims, to supplement claims previously raised, or both. The Court is
not unsympathetic to the notion that Petitioner cannot be expected to produce evidence that no
court is willing to grant him funds in order to obtain.

However, based on the limited record

before the Court and the applicable precedent discussed above, the Court concludes that
Petitioner faces obstacles to the production of new evidence in this federal habeas proceeding.
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Therefore, under the facts as presented to this Court, the Court concludes that Petitioner has
failed to demonstrate that the authorization of funds for a fact investigator and a mitigation
investigator is reasonably necessary to the presentation of his federal habeas claims.
Accordingly, it is hereby ORDERED:
1.

Petitioner=s motion for fund for investigative assistance pursuant to 18 U.S.C.

§3599(f) is DENIED, and
2.

Petitioner has failed to make a proper showing for the need for confidentiality under

18 U.S.C. § 3599(f), and his request to proceed ex parte is DENIED.

Petitioner’s request to

withdraw his in camera motion, however, is GRANTED.
THIS 8th day of September, 2015.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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