Howell v. Fisher et al

Filing 25

ORDER granting in part 20 Motion for Funding; denying 21 Motion for Extension of Time to File Response/Reply ; denying 23 Motion for Extension of Time to File Response/Reply. Signed by District Judge Debra M. Brown on 11/12/15. (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 REGARDING PETITIONER’S MOTION FOR FUNDING
Petitioner Marlon Howell has filed a motion for funding for expert and investigative
assistance pursuant to 18 U.S.C. § 3599(f). Doc. #20. Respondents have filed motions for
extensions of time within which to file a response in opposition to the funding request. Docs. #21
& #23. Citing prejudice to the development of his case if a determination of funding is further
delayed, Petitioner opposes Respondents’ requests for additional time.

Doc. #24.

Having

considered the submissions of the parties to date, the Court finds that Respondents’ motions for
extension should be denied, and Petitioner’s motion for funding granted in part.
Petitioner’s Funding Request
This Court may authorize funds for investigative or expert services only upon a showing
that the services are “reasonably necessary” for Petitioner’s representation. 18 U.S.C. § 3599(f).
Services are “reasonably necessary” if a “substantial need” for the assistance is shown. Riley v.
Dretke, 362 F.3d 302, 307 (5th Cir. 2004). A court does not abuse its discretion in the denial of
funding when a petitioner has “(a) failed to supplement his funding request with a viable
constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would
only support a meritless claim, or (c) when the sought-after assistance would only supplement
prior evidence.” Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009) (citation omitted).

Petitioner maintains in his motion for funding that he has raised three claims in his federal
habeas petition that demand further development: (1) ineffective assistance of counsel during
voir dire (Ground XI); (2) ineffective assistance of counsel for failure to investigate and present
mitigation evidence at the penalty phase of trial (Ground VI); and (3) ineffective assistance of
counsel for failure to challenge Petitioner’s underlying conviction and sentence for possession of
marijuana (Ground IV). Petitioner concedes that the ineffective assistance claims regarding voir
dire and his marijuana conviction were not presented in any capacity in the state courts. He also
acknowledges that a claim regarding mitigation at the penalty phase was raised in state court, see
Howell v. State, 989 So. 2d 372, 394 (Miss. 2008); but maintains that new evidence and arguments
to be presented for habeas review fundamentally alter the ineffective assistance of counsel claims
litigated in post-conviction proceedings, thereby rendering them “new” claims.
Federal habeas claims never presented in state court may be barred from federal habeas
review because of the doctrine of procedural default, which provides, in part, that if a petitioner
fails to present a claim in state court and can no longer raise the claim in state court because of state
procedural rules, the claim is exhausted but procedurally defaulted from federal habeas review
because of an independent and adequate state procedural bar. See Coleman v. Thompson, 501
U.S. 722, 729-32 (1991). A habeas petitioner may overcome a procedural bar and obtain review
of his claim by showing either cause or prejudice, or that a fundamental miscarriage of justice
would result from failure to review the claim. See, e.g., id. at 750. Petitioner maintains that the
claims he has identified are not barred from federal habeas review, however, but are properly
raised under the exception established in Martinez v. Ryan, which holds that “[w]here under state

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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.” Martinez v. Ryan , 132 S.Ct. 1309, 1320
(2012).
In order to establish an entitlement to federal habeas review of his claims under the
Martinez exception, Petitioner must establish that his ineffective assistance of counsel claims are
substantial and that his state post-conviction counsel was ineffective. See id. He cannot do that
without demonstrating that counsel’s performance was deficient, and that the deficient
performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding
that showing of ineffective assistance of counsel requires petitioner to demonstrate “counsel’s
performance was deficient,” and “the deficient performance prejudiced the defense.”). Petitioner
argues in his motion for funding that he cannot establish prejudice without developing the claims
that should have been presented to the state court, which requires funding. See Doc. # 20 at 10.
As mentioned, Petitioner has already presented a claim to the state courts that counsel was
ineffective in failing to develop and present mitigating evidence at the penalty phase of trial. See
Howell, 989 So. 2d at 394. Where a claim is adjudicated on the merits by a state court, habeas
review under 28 U.S.C. § 2254(d) is limited to the record that was before the state court. See
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

However, additional allegations can

sometimes change the nature of the claim, thereby rendering it unadjudicated. Id. at n.10 & n.11.
The United States Supreme Court has yet to determine “where to draw the line between new

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claims and claims adjudicated on the merits.” Id. at n.11; see also Sells v. Stephens, 536 F. App'x
483 (5th Cir. 2013) (noting claim presented in state court supplemented with new evidence on
habeas found procedurally barred and reviewed on merits under Martinez); Escamilla v. Stephens,
749 F.3d 380, 395 (5th Cir. 2014) (finding new evidence did not fundamentally alter claim where
it merely provided additional evidentiary support for claim already presented and adjudicated in
state court proceedings).
At this stage of Petitioner’s case, the Court cannot determine where the line is between a
“new claim” and one already adjudicated on its merits. It likewise cannot determine whether the
Martinez exception is applicable to Petitioner’s claims, or whether opportunities exist for
Petitioner to exhaust additional claims in state court.

Petitioner has persuaded the Court,

however, that he has presented federal habeas claims that, if developed, might allow him to return
to state court and attempt to raise new claims, or to argue ineffective assistance of counsel as cause
to excuse a procedural bar where no remedies are available in state court. Therefore, the Court
finds that some funds for investigative and expert assistance are reasonably necessary such that
Petitioner’s request for funds will be partially granted.
However, Petitioner seeks approximately $81,000 in funding in order to obtain the services
of a neuropsychiatrist, a neuropsychologist, a fact investigator, and a mitigation specialist.
Funding requests for expert or investigative assistance generally must be within the limits allowed
by statute, which is currently $7,500. See 18 U.S.C. 3599(g)(2). Thus, the partial grant of
Petitioner’s motion requesting authorization of funds will be capped at $7,500, as the Court does
not conclude that the particular facts of Petitioner’s case present the need for “services of an

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unusual character or duration.” Id. The Court also does not anticipate needing to certify an
amount over the statutory maximum, and cautions that the grant of any additional funds is
contingent upon Fifth Circuit approval. See id. Additionally, by granting Petitioner’s motion in
part, the Court does not express any opinion as to whether the claims as presented by Petitioner are
viable in this Court, or whether any newly developed evidence may be considered by the Court.
Respondents’ Motions for Extension
Having already determined based on the discussion above that Petitioner’s request for
funding should be granted in part, Respondents’ motions for extension will be denied.
Conclusion
For all of the reasons above, it is hereby ORDERED:
1.

Petitioner’s motion [20] for funding pursuant to 18 U.S.C. § 3599(f) is GRANTED

in part up to the statutory maximum of $7,500.00, and denied in all other respects; and
2.

Respondents’ motions [21][23] for extensions of time within which to file a

response to Petitioner’s motion for funding are DENIED.
SO ORDERED, this 12th day of November, 2015.

/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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