Dorsey v. Steele
Filing
117
ORDER denying 116 ex parte motion for relief under 18 U.S.C. § 3599 and 28 U.S.C. § 1651 (All Writs Act). Signed on 1/11/2023 by District Judge Roseann Ketchmark. (Brown, Jonathan)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BRIAN J. DORSEY,
Petitioner,
v.
TROY STEELE,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 4:15-cv-08000-RK
ORDER
Before the Court is Petitioner Brian J. Dorsey’s ex parte motion filed under seal seeking
relief under 18 U.S.C. § 3599 and 28 U.S.C. § 1651 (“All Writs Act”). (Doc. 116.) Specifically,
Petitioner seeks an order that the Missouri Department of Corrections transport him to a medical
center to obtain certain medical testing in support of an anticipated clemency application. After
careful consideration and for the reasons explained below, the ex parte motion is DENIED.
Discussion
Petitioner is currently in the custody of the Missouri Department of Corrections, having
been convicted of two counts of first-degree murder and sentenced to death. Petitioner has been
denied relief on direct appeal, 1 in state post-conviction relief proceedings, 2 and in federal habeas
relief proceedings under 28 U.S.C. § 2254. 3 Petitioner continues to be represented by counsel
appointed to represent him at the § 2254 proceedings pursuant to 18 U.S.C. § 3599. 4 In the ex
parte motion, Petitioner’s counsel state that they believe the requested medical testing is
“reasonably necessary” to support Petitioner’s anticipated clemency case.
State v. Dorsey, 318 S.W.3d 648 (Mo. banc 2010), cert. denied, 562 U.S. 1067 (2010).
Dorsey v. State, 448 S.W.3d 276 (Mo. banc 2014).
3 Dorsey v. Steele, No. 4:15-08000-CV-RK, 2019 WL 4740518 (W.D. Mo. Sept. 27, 2019), aff’d,
Dorsey v. Vandergriff, 30 F.4th 752 (8th Cir. 2022), reh’g denied, No. 20-2099, 2022 WL 2180219 (8th
Cir. June 16, 2022), petition for cert. filed, No. 22-6091 (U.S. Sept. 2, 2022). The petition for certiorari
now pending before the United States Supreme Court is currently awaiting response, due by January 17,
2023.
4 Section 3599 expressly contemplates for death penalty cases (1) appointment of counsel to
represent those defendants in § 2254 habeas proceedings who are otherwise financially unable to obtain
adequate representation, and (2) that such appointment will continue “throughout every subsequent stage
of available judicial proceedings, including . . . proceedings for executive or other clemency as may be
available to the defendant.” § 3599(a)(2) & (e); see Harbison v. Bell, 556 U.S. 180, 194 (2009) (holding
that § 3599 authorizes federally appointed counsel to represent defendants in state clemency proceedings).
1
2
Case 4:15-cv-08000-RK Document 117 Filed 01/11/23 Page 1 of 5
As relevant here, § 3599(f) provides as follows:
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 therefore under subsection (g). No ex parte
proceeding, communication, or request may be considered pursuant to this section
unless a proper showing is made concerning the need for confidentiality. Any such
proceeding, communication, or request shall be transcribed and made a part of the
record available for appellate review.
As an initial matter, the Court is not convinced that Petitioner has satisfied § 3553(f)’s
confidentiality requirement to pursue this request ex parte. Several federal courts, including the
Eastern District of Missouri, have concluded that the showing to proceed ex parte under § 3553(f)
requires identification of some case-specific need for confidentiality rather than a generic
confidentiality interest otherwise common to all capital cases. Jones v. Stephens, No. 4:05-CV638-Y, 2014 WL 2446116, at *1 (N.D. Tex. May 30, 2014) (citing Patrick v. Johnson, 37 F. Supp.
2d 815, 816 (N.D. Tex. 1999); other citations omitted); Barnett v. Roper, No. 4:03CV00614 ERW,
2010 WL 1268030, at *1 (E.D. Mo. Apr. 1, 2010). Indeed, as the Southern District of Ohio has
recognized, by its plain terms, § 3599(f) “conveys a clear legislative intent to forestall, except upon
a specific showing of the need for confidentiality, any filing or consideration of ex parte motions
seeking funds for expert/investigative assistance.” Garner v. Mitchell, No. 1:98-cv-870, at *2
(S.D. Ohio Apr. 28, 2010). A brief review of § 3599(f)’s legislative history seems to support this
conclusion.5
In his ex parte motion, Petitioner states that confidentiality is required to preserve the
defense strategy and argues that the government has no interest in the “investigation or exploration
of evidence to support the defense” until that evidence is presented on behalf of Petitioner in the
In 2006, Congress added § 3599, which was virtually the same as had previously been enacted at
21 U.S.C. § 848(q)(4)-(10). See Pub. L. 109-177, tit. II, sub. tit. B, § 221, 120 Stat. 192 (2006) (codified at
§ 3599); 21 U.S.C. § 848(q)(4)-(10) (2005). As to the prior enactment of the provision under § 848(q),
subsection (9) had, since 1996, provided much the same as § 3599(f) does today: “No ex parte proceeding,
communication, or request may be considered pursuant to this section unless a proper showing is made
concerning the need for confidentiality.” See Pub. L. 104-132, tit. 1, § 108, 110 Stat. 1214 (1996). Before
1996, however, § 848(q)(9) had provided for ex parte proceedings as a matter of course. See 21 U.S.C.
§ 848(q)(9) (1995) (stated: “Upon a finding in ex parte proceedings that investigative, expert or other
services are reasonably necessary for the representation of the defendant . . . the court shall authorize the
defendant’s attorneys to obtain such services on behalf of the defendant and shall order the payment of fees
and expenses therefore[.]”).
5
2
Case 4:15-cv-08000-RK Document 117 Filed 01/11/23 Page 2 of 5
anticipated clemency proceeding. In Missouri, the executive clemency process, governed by
statute (Mo. Rev. Stat. § 417.800) and the Missouri Constitution (Mo. Const. art. IV, sec. 7), does
not appear to necessarily invoke an adversarial process. See State ex rel. Lute v. Mo. Bd. of Prob.
& Parole, 218 S.W.3d 431, 435 (Mo. banc 2007) (explaining the executive clemency process in
Missouri).
In addition, Petitioner cites to other federal statutes and rules under which indigent
defendants are entitled to seek similar relief on an ex parte basis as a matter of course. See 18
U.S.C. § 3006A(e) (authorizing ex parte proceedings as a matter of right for requests for services
for persons represented by counsel appointed under the Criminal Justice Reform Act); United
States v. Hang, 75 F.3d 1275, 1281 (8th Cir. 1996) (recognizing that Rule 17(b) – which authorizes
ex parte application for witness subpoenas as a matter of course for indigent defendants – “places
all defendants, whether impoverished or with ample financial resources, on equal footing, and it
prevents the Government from securing undue discovery”). The difference here, though, is the
specific statutory language utilized in § 3599(f), which suggests some showing of a need for
confidentiality is required to proceed ex parte. Nonetheless, under the circumstances here, the
Court will permit Petitioner’s ex parte motion to remain under seal at this time. 6
Next, the Court considers whether it has authority to provide Petitioner the relief he
requests – that is, to order that the Missouri Department of Corrections transport Petitioner to a
medical facility to undergo desired medical testing in support of his anticipated clemency request.
In his ex parte motion, Petitioner relies on two statutes under which he argues the Court has
authority to issue the desired order: 18 U.S.C. § 3599 and 28 U.S.C. § 1651. After careful review,
the Court concludes it does not have the authority to grant Petitioner’s request.
First, as to the Court’s authority under § 3599, the answer is clear that the Court’s authority
under the funding statute does not authorize the Court to order the specific relief Petitioner
requests. In Tisius v. Vandergriff, __ F. 4th __, 2022 WL 17748240 (8th Cir. 2022), the Eighth
Circuit recently held that § 3599 does not authorize a federal court to order state officials to act in
furtherance of a defendant’s state clemency proceeding. In Tisius, the defendant sought (and
The Court will not issue this order under seal, however, in the interests of justice and open court
proceedings. In doing so, the Court notes that this approach is consistent with a recent opinion issued by
the Eighth Circuit concerning a defendant’s ex parte motion under § 3599: although the underlying filings
remain under seal, the Eighth Circuit’s opinion is not sealed. See Tisius v. Griffith, No. 4:17-cv-00426SRB (W.D. Mo.) (doc. 121-1).
6
3
Case 4:15-cv-08000-RK Document 117 Filed 01/11/23 Page 3 of 5
obtained) from the district court two orders pursuant to § 3599, directing the warden of the state
correctional facility where defendant was confined and the Missouri Department of Corrections to
transport defendant to a hospital to undergo medical testing in support of his executive clemency
proceeding. See id. at *1. On appeal, the Eighth Circuit held that § 3599 “does not permit the
district court to compel state officials to act in furtherance of state clemency proceedings.” Id. In
doing so, the Eighth Circuit expressly joined the Fifth, Sixth, Eleventh, and Ninth Circuits, to hold
that Ҥ 3599 is a funding statute, not a mechanism that grants federal courts authority to oversee
and compel state officials to act in furtherance of clemency proceedings.” Id. (citing Beatty v.
Lumpkin, 52 F.4th 632, 634-35 (5th Cir. 2022); Bowels v. Desantis, 934 F.3d 1230, 1242-44 (11th
Cir. 2019); Leavitt v. Arave, 682 F.3d 1138, 1141 (9th Cir. 2012); Baze v. Parker, 632 F.3d 338,
342-43 (6th Cir. 2011)). Accordingly, bound by this precedent, the Court is not authorized under
§ 3599 to provide Petitioner the relief he seeks.
In addition to § 3599, Petitioner also argues that the Court has authority under the All Writs
Act, 28 U.S.C. § 1651, to order that he be transported to an outside facility undergo desired medical
testing. In relevant part, the All Writs Act authorizes federal courts to “issue all writs necessary
or appropriate to aid in their jurisdictions and agreeable to the usages and principles of law.”
§ 1651(a). By its terms, however, the All Writs Act is not an independent source of authority
under which the Court can act. Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic,
P.A., 551 F.3d 812, 821 (8th Cir. 2009) (the All Writs Act “is not an independent source of subject
matter jurisdiction”) (citations omitted); accord United States v. Denedo, 556 U.S. 904, 914 (2009)
(“The authority to issue a writ under the All Writs Act is not a font of jurisdiction.”) (citation
omitted). The Eighth Circuit does not appear to have addressed this specific issue.7 In Baze, the
Sixth Circuit did address this issue directly, and held that whether considered independently or in
As the Eighth Circuit noted in Tisius, the issue was expressly raised in an earlier case, Rhines v.
Young, 941 F.3d 894, 895 (8th Cir. 2019), and while the court ultimately dismissed Rhines on mootness or
exhaustion grounds, prior to doing so, it noted that
7
[a] majority of the panel . . . tentatively concluded that [the Court] should affirm a district
court’s conclusion that it lacked authority under 18 U.S.C. § 3599 and the All Writs Act,
28 U.S.C. § 1651(a), to order South Dakota prison officials to allow an inmate sentenced
to death to meet with experts retained by appointed counsel for the purposes of preparing
a clemency application.
Tisius, 2022 WL 17748240, at *1 (citing Rhines, 941 F.3d at 895-96).
4
Case 4:15-cv-08000-RK Document 117 Filed 01/11/23 Page 4 of 5
conjunction with § 3599, the All Writs Act did not provide the district court with the “enforcement
power” to provide the requested relief in support of a clemency application. 632 F.3d at 345-46;
see also LeCroy v. United States, 975 F.3d 1192, 1197 n.1 (11th Cir. 2020) (relying on Baze in
rejecting defendant’s argument that the “All Writs Act protects the court’s jurisdiction under 18
U.S.C. § 3559 to appoint counsel”).
In Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supreme Court examined the limitations
of the All Writs Act, recognizing that the statute provides authority and power only “to the issuance
of process ‘in aid of’ the issuing court’s jurisdiction.” Id. at 534 (citation omitted). In other words,
“the express terms of the [All Writs] Act confine the power . . . to issuing process ‘in aid of’ [the
issuing court’s] existing statutory jurisdiction; the Act does not enlarge that jurisdiction.” Id. at
534-35 (citations and quotation marks omitted). In Clinton, then, the Supreme Court held that
beyond the United States Court of Appeals for the Armed Forces’ “narrowly circumscribed”
jurisdiction (as defined by statute), the All Writs Act did not provide any authority to so act. Id.
at 535-36. As this legal principle is applied here, because § 3599 does not provide the Court the
authority to grant the relief Petitioner requests, the All Writs Act – whether alone or in conjunction
with § 3599 – does not permit the Court to grant Petitioner the relief he seeks, either. Put another
way, unless the Court has some jurisdiction to act otherwise in the matter, the All Writs Act does
not itself authorize the Court to act. Here, the only source of authority or jurisdiction on which
Petitioner relies is § 3599. But, as the Eighth Circuit recently held, § 3599 is merely a funding
statute, and no more. Petitioner must therefore point to some other jurisdictional basis on which
the Court may act; Petitioner points to no other source of authority or jurisdiction for the Court to
oversee the development of a state prisoner’s state clemency application in the manner requested.
Conclusion
For these reasons, Petitioner’s ex parte motion (Doc. 116) is DENIED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: January 11, 2023
5
Case 4:15-cv-08000-RK Document 117 Filed 01/11/23 Page 5 of 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?