Rayford v. Davis-Director TDCJ-CID

Filing 102

MEMORANDUM OPINION AND ORDER GRANTING FUNDING. (Ordered by Judge Jane J. Boyle on 9/5/2017) (ykp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
WILLIAM EARL RAYFORD,
Petitioner,
v.
LORIE DAVIS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent.

§
§
§
§
§
§
§
§
§
§
§

NO. 3:06-CV-0978-B
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER GRANTING FUNDING
On June 6, 2017, the Criminal District Court of Dallas County, Texas, set the execution of
William Earl Rayford for January 30, 2018. On August 9, 2017, Rayford filed his motion for funds
for expert services. Motion, doc. 100. The certificate of conference indicated that it is opposed. Mot.
at 12. Respondent has filed her response in opposition to the motion. Response, doc. 101. Because
Rayford has shown a reasonable need for the funding, the motion is granted.
I.
REQUEST
Rayford seeks this Court’s approval for funds to hire an expert, Dr. Richard L. Fulbright, to
perform a neuropsychological evaluation on Mr. Rayford in connection with subsequent state
clemency proceedings under 18 U.S.C. § 3599(f). See Mot. 10-11 (citing Brown v. Stephens, 762 F.3d
454, 459-61 (5th Cir. 2014)). Rayford argues that the requested services are reasonably necessary
to provide the Governor and Board of Pardons and Paroles the information they need in order to
determine whether to exercise their discretion to extend grace to the petitioner in order to prevent

a miscarriage of justice. Specifically, Rayford asserts that the proposed funding and expert services
would provide “material information beyond that already adduced.” Mot. 10. Rayford acknowledges
that a mental health evaluation was previously conducted by forensic psychologist Dr. Gilda Kessner
prior to his capital murder trial, but questions the circumstances and thoroughness of that
examination.
Respondent argues that the requested funding is not reasonably necessary because evidence
of Rayford’s neuropsychological functioning would be cumulative to mental-health evidence already
presented during Rayford’s trial and during his postconviction proceedings. Resp. 11-18. Further,
Respondent argues that Rayford cannot demonstrate that funding is reasonably necessary in light of
the brutal nature of his two murders. Resp. 18-19.
II.
LEGAL STANDARD
Appointed counsel has a duty to represent Rayford through “all available post-conviction
process, together with applications for stays of execution and other appropriate motions and
procedures, and shall also represent the defendant in such competency proceedings and proceedings
for executive or other clemency as may be available to” Rayford. 18 U.S.C. § 3599(e); Harbison v.
Bell, 556 U.S. 180, 194 (2009) (holding that § 3599 authorizes federally appointed counsel to
represent their clients in state clemency proceedings and entitles them to compensation for that
representation). This statute further 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).
-2-

18 U.S.C. § 3599(f). After discussing the nature and purpose of clemency proceedings, the United
States Court of Appeals for the Fifth Circuit provided guidance on whether district court’s should
grant funding for clemency investigations.
Thus, when a petitioner requests funds for investigative services for the purpose of
clemency proceedings, the petitioner must show that the requested services are
reasonably necessary to provide the Governor and Board of Pardons and Paroles the
information they need in order to determine whether to exercise their discretion to
extend grace to the petitioner in order to prevent a miscarriage of justice.
Brown, 762 F.3d at 460. In construing this language, the United States Court of Appeals for the
Sixth Circuit held that a district court abused its discretion in denying funding for a
neuropsychological examination on the basis that the inmate had already had mental health
examinations because the inmate “pointed to a history of events and behavior that can cause brain
damage; he has provided an expert opinion that neuropsychological testing is warranted; and has
explained why previous testing was inadequate and is now outdated.” Matthews v. White, 807 F.3d
756, 763 (6th Cir. 2015).
III.
ANALYSIS
Although Rayford has not produced an opinion from Dr. Fulbright, he has attached an
estimate and has adequately shown that his mental health is a matter that may be important to his
clemency proceedings. Both parties discuss Rayford’s expert mental health assistance that he
obtained at the time of trial, but neither has produced recent mental health evaluations capable of
showing his current condition or how it might impact his execution. See, e.g., Saldano v. Davis, No.
16-70025, 2017 WL 2814386, at *7 (5th Cir. June 28, 2017) (noting mental deterioration that
occurred during incarceration on death row).
-3-

While the importance of Rayford’s mental condition to his clemency application has been
shown, there has been no showing that any neurological examination would duplicate any prior
examination already in the record or otherwise available to him. Further, no evaluation has been
identified that is capable of showing Rayford’s current mental condition. Accordingly, the Court finds
that a current examination is appropriate for the purpose of clemency proceedings and for any
potential competency challenge that would not have been ripe before his execution was set.
IV.
CONCLUSION
Rayford’s motion for expert funding is GRANTED. Dr. Richard L. Fulbright is authorized
to perform expert mental health services for a neuropsychological evaluation of Mr. Rayford up to
the amount of $7,500.
IT IS SO ORDERED.
DATE: September 5, 2017.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

-4-