Robertson v. Thaler, Director TDCJ-CID

Filing 13

Memorandum Opinion and Order re: 8 MOTION to Seal and Consider Application for Funding Ex parte (Opposed), 10 MOTION to Seal and Consider Application for Funding Ex parte (Opposed). The court finds that petitioner has not made a proper showing concerning the need for confidentiality. Petitioner may either supplement his motions for leave to proceed ex parte with the information listed above within 21 days of this order, or he may serve the applications upon respo ndent that were previously tendered ex parte. Respondent is allowed 14 days from the date that any supplemented motion for leave to proceed ex parte or re-filed application is filed to make his response. Extensions of time may be granted for good cause shown. (Ordered by Senior Judge A. Joe Fish on 6/13/2013) (cea)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MARK ROBERTSON,
Petitioner,
VS.
WILLIAM STEPHENS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO.
3:13-CV-0728-G
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER

On May 13, 2013, Mark Robertson (“petitioner”) filed a motion for leave to
proceed ex parte on his application for funding a mitigation investigator (docket entry
8). On May 14, 2013, petitioner filed a motion for leave to proceed ex parte on his
application for funding an attorney/mitigation expert (docket entry 10). With each
of these motions, petitioner has tendered the proposed ex parte filing. On May 23,
2013, respondent filed his response in opposition (docket entry 12) to petitioner’s
motion for leave to proceed ex parte on the application for funding a mitigation

investigator (docket entry 8). No response has been filed to the motion for leave to
proceed ex parte on petitioner’s application for funding an attorney/mitigation expert
(docket entry 10), and the time has expired for filing a response to that motion.
Therefore, the court considers respondent’s arguments in connection with its
consideration of both motions.
I.
The court has previously found that petitioner is entitled to the appointment
of counsel and that this court may authorize petitioner’s attorneys to obtain
investigative, expert, or other services upon a finding that such services are reasonably
necessary for the representation of petitioner. See 18 U.S.C. § 3599(f). Petitioner
seeks leave to proceed ex parte and identifies generically the type of services needed: a
mitigation investigator (docket entry 8 at 1) and an attorney/mitigation expert
(docket entry 10 at 1). Petitioner also identifies the broad issue or topic for which
the services are sought: “an ineffective-assistance-of-counsel Wiggins claim” (docket
entry 8 at 3; docket entry 10 at 3). Petitioner also states generally that
confidentiality is needed to protect “prior and proposed work product” or “privileged
information” (docket entry 8 at 3; docket entry 10 at 3). Respondent opposes leave
to proceed ex parte (docket entry 12 at 1-7), and opposes the anticipated request for
funding (docket entry 12 at 7-9). The state court records have not yet been filed or
made available to this court.

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II.
A
There is no constitutional guarantee of counsel or expert services in federal
postconviction review under 28 U.S.C. § 2254. See Coleman v. Thompson, 501 U.S.
722, 752 (1991), modified by Martinez v. Ryan, 132 S.Ct. 1309, 1315, 1316-19
(2012)); McFarland v. Scott, 512 U.S. 849, 854-55 (1994). Therefore, petitioner’s
entitlement to funding is based entirely on 18 U.S.C. § 3599(f), which also
establishes the funding procedure: “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.” Id. This language does not require courts to
allow ex parte proceedings, but prohibits courts from doing so unless the required
showing is made. It is a significant departure from the prior practice.1
This provision has been interpreted to require a petitioner seeking such
expense authorization ex parte to:

“In 1996, the AEDPA section 108 changed [the predecessor statute]
848(q)(9), removing the ex parte proceeding requirement and changing the
mandatory ‘shall’ language to the discretionary ‘may.’” Fuller v. Johnson, 114 F.3d
491, 502 (5th Cir. 1997) (citing AEDPA § 108, Pub.L. No. 104-132, 110 Stat. 1226
(1996)). Discussing these amendments, the United States Court of Appeals for the
Tenth Circuit observed, “[o]ne of the amendments, applicable only to death penalty
cases, changes the presumption from an ex parte hearing for services other than
counsel to a process which is not to be held ex parte ‘unless a proper showing is made
concerning the need for confidentiality.’” United States v. Gonzales, 150 F.3d 1246,
1264 (10th Cir. 1998) (quoting 21 U.S.C. § 848(q)(9)).
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file and serve a brief motion seeking generally
authorization for investigative or expert expenses,
[including] a short case-specific statement of the need for
confidentiality. The statement of need for confidentiality
merely must identify generically the type of services needed
and the broad issue or topic (e.g., innocence) for which the
services are necessary. Simultaneously, the petitioner must
file ex parte and under seal his detailed application for
authorization for the investigator or expert, and must
estimate the amount of fees or expenses likely to be
incurred. The petitioner must provide factual support for
the funding request. The motion, but not the application
with supporting materials, must be served on the
respondent.
Patrick v. Johnson, 37 F. Supp. 2d 815, 816 (N.D. Tex. 1999) (Kaplan, M.J.) (quoting
Dowthitt v. Johnson, No. H-98-3282 slip op. at 4, 1998 WL 1986954, at *2 (S.D. Tex.
Dec. 2, 1998)).
B
The Patrick procedure has been interpreted to require nothing more than to
generically identify the type of services needed and the broad issue or topic to be
investigated in order to make the required showing of a need for confidentiality.
Another judge of this district has observed that such a procedure would not be
adequate:
The court does not approve the procedure in Patrick to the
extent that it provides that an applicant is only obligated to
“identify generically the type of services needed and the
broad issue or topic (e.g., innocence) for which the services
are necessary”; this would neither demonstrate a need for
confidentiality nor explain why the funding request could
not be made publicly, as § 3599(f) contemplates.
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Threadgill v. Thaler, No. 3:05-CV-2217-D, slip op. at 2 n.2 (N.D. Tex., Oct. 11, 2012)
(Fitzwater, C.J.); see also Ruiz v. Thaler, No. SA-03-CA-303-OG, slip op. at 2 (W.D.
Tex., Aug. 31, 2011) (Garcia, J.) (finding that under Patrick “it is unnecessary for a
petitioner to explain in clear and concise terms why secrecy is necessary in a particular
case before a petitioner may solicit in an ex parte manner unlimited federal funding for
investigative and expert expenses and fees.”).2 This court, therefore, revises the
procedure in Patrick to clarify what is required to make a proper showing of the need
for confidentiality under § 3599(f) in this case.
III.
In allowing a habeas petitioner to proceed ex parte in procuring investigative or
expert assistance, the court must balance a petitioner’s need for a confidentiality in
preparing her case with other factors such as: (1) the State’s interest in evidentiary

It is not entirely clear that this interpretation was intended. The issue in
Patrick was not whether some need for confidentiality had been shown, but the degree
of specificity required under § 3599(f). Petitioner Patrick argued that it merely
required a “general” showing of the need for confidentiality, and asserted that he
fulfilled this requirement because “(1) the state habeas proceeding was ‘woefully
inadequate;’ and (2) demonstration of the need for outside services would reveal the
contents of privileged conversations and attorney work product.” 37 F. Supp. 2d at
816. The respondent argued that the showing of the need for confidentiality had to
be “specific.” Id. The court found that Patrick’s showing of the need for
confidentiality was not sufficiently case-specific. “Here, petitioner asserts only a
generic need for confidentiality which arises in virtually all capital cases.” Id. Patrick
relied on Dowthitt, in which the court also concluded that “this requirement has not
been satisfied by Dowthitt's conclusory assertions of the attorney-client or work
product privileges.” 1998 WL 1986954, at *2. Both courts found that § 3599(f)
required more.
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development in federal habeas proceedings; (2) the public’s interest in fiscal
transparency; and (3) the court’s need for reliable information in deciding whether
the requested assistance is really necessary. It has been the court’s experience that ex
parte evidence “very seldom leads to the proper discovery of truth.” Crawford v.
Washington, 541 U.S. 36, 49 (2004). “It is, however, unclear how a habeas petitioner
. . . ‘can explain the need to proceed ex parte without disclosing the very information
they claim a need to keep secret.’” Haight v. Parker, 2010 WL 1489979, at *9 (W.D.
Ky., Apr. 13, 2010) (Simpson, J.) (quoting Randy Hertz & James S. Liebman, Federal
Habeas Corpus Practice and Procedure § 19.3 n.17 (5th ed.2009)). Similar concerns
have long existed in the pretrial discovery of civil cases. The Federal Rules of Civil
Procedure set forth a balanced procedure for withholding information from discovery
in civil proceedings.3 These rules apply in federal habeas proceedings to the extent
3

Rule 26(b)(5) of the Federal Rules of Civil Procedure provides:
When a party withholds information
otherwise discoverable by claiming that the
information is privileged or subject to
protection as trial-preparation material, the
party must:
(i) expressly make the claim; and
(ii) describe the nature of the
documents, communications, or
tangible things not produced or
disclosed -- and do so in a
manner that, without revealing
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(continued...)

that they “are not inconsistent with any statutory provisions or [the habeas rules].”
Mayle v. Felix, 545 U.S. 644 (2005) (quoting predecessor to Rule 12 of the Rules
Governing Section 2254 Cases in the United States District Courts).
A
A habeas petitioner, like any other litigant, has an interest in the
confidentiality of attorney-client communications and attorney work product. These
privileges protect communications and other tangible materials in existence.4
Regarding any such work product or privilege by any prior counsel, a habeas
petitioner waives the privilege with respect to the attorney against whom a claim of
ineffective assistance of counsel is asserted. See United States v. Ballard, 779 F.2d
287, 292 (5th Cir. 1986); Laughner v. United States, 373 F.2d 326, 327 (5th Cir.
3

(...continued)

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follows:

information itself privileged or
protected, will enable other
parties to assess the claim.

Rule 502(g) of the Federal Rules of Evidence defines these privileges as

(1) “attorney-client privilege” means the
protection that applicable law provides for
confidential attorney-client communications;
and
(2) “work-product protection” means the
protection that applicable law provides for
tangible material (or its intangible equivalent)
prepared in anticipation of litigation or for
trial.
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1967) (“where, as here, the client alleges a breach of duty to him by the attorney, we
have not the slightest scruple about deciding that he thereby waives the privilege as to
all communications relevant to that issue.”). Since all of prior counsel’s relevant
communications and attorney work product would seem to be laid bare in reviewing
their representation, it is not clear what portion of the prior mitigation investigation
would remain confidential. Regarding “proposed” work product, the privilege would
not prevent the disclosure of information that is not already known to respondent or
that constitutes the attorney-client communications or work product of prior counsel
that is at issue. While a habeas petitioner has an interest in protecting the identity of
potential witnesses, it may be less than that of a criminal defendant in pretrial
proceedings.5
Except for revealing the actual identities of the proposed investigator or expert,
it is difficult to see how making an argument for the funding of a mitigation expert or
investigator in accordance with ordinary habeas principles and practices will require
In United States. v. Meriwether, 486 F.2d 498 (1973), the Court of
Appeals discussed amendments to the Federal Rules of Criminal Procedure to allow
indigent criminal defendants to proceed ex parte in requesting subpoenas for trial.
“The names of witnesses to be called by the defendant could easily aid the
government in determining the strategy the defendant plans to use at trial.” Id, 486
F.2d at 506. This amendment, however, “was not intended to protect the defendant
from opposition from the prosecutor; it was intended to shield the theory of his
defense from the prosecutor’s scrutiny.” In Meriwether, however, the violation of this
provision did not prejudice the defense. “The major factor which causes us to reach
this conclusion is that this was not the first, but the second trial of the same charges
against the defendant.” After the first trial, the need to shield the identify of
witnesses is diminished.
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the disclosure of confidential or privileged information at this stage in the
proceedings. The court must not lose sight of the fact that “the state trial on the
merits” is “the ‘main event,’ so to speak, rather than a ‘tryout on the road’ for what
will later be the determinative federal habeas hearing.” Coleman v. Thompson, 501
U.S. 722, 747 (1991) (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).
B
The court agrees with respondent that the legislative history of § 3599(f)
suggests that Congress intended both parties to have some role in the process for
funding experts and investigators in the postconviction habeas review of deathpenalty cases in federal court (Resp. at 3-5). If the court grants leave to proceed ex
parte, these motions for leave may provide the only information available to
respondent and the only opportunity he will be afforded to participate in the funding
process. It is at this point in the process when a respondent makes his argument in
opposition to whatever funding request is believed to be tendered ex parte, and
produces any records or other information that may be needed to make a proper
determination of the funding request.
The instant motions for leave to proceed ex parte do not appear sufficient for
respondent to identify those portions of the record that should be considered by this
court. Based on the limited information contained in the motions, respondent
characterizes petitioner’s funding request as a “fishing expedition” (docket entry 12 at

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8) and argues that “it does not appear that Robertson raised a Wiggins claim on
appeal or in state habeas proceedings. Hence, such a claim would be defaulted”
(docket entry 12 at 9). Further, the motions provide little notice of the potential
factual development sought. Petitioner does not disclose the amount of funding
requested for investigative and expert assistance, even though that fact would not
appear to be confidential and would provide some notice of its potential impact on
this litigation.
Making these disclosures in the motions served on the respondent should
facilitate this process, increase its fairness, and bring it closer to the intent of the
statute. As observed by respondent, a “federal habeas corpus proceeding is no place
for sandbagging” (Resp. at 7). While there is no indication that any omission was
intentionally designed to “sandbag” the respondent, the practical effect is the same.
It has deprived him of a meaningful opportunity to provide information necessary for
this court to make a proper determination of this important funding matter.
Therefore, the motion to proceed ex parte should disclose the nonprivileged
information necessary for an adequate response not only to whether to proceed ex
parte, but to the funding motion itself.
C
In determining whether and to what extent further mitigation investigation is
now required, it is important to ascertain what mitigation information is already

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available to the petitioner. Duplicating prior mitigation investigations would
unnecessarily waste judicial resources. The history of this case suggests ample prior
opportunities to develop any needed mitigation evidence.6 The state court record,
however, is not yet before this court, and neither party’s filing allows the court to

Robertson has received two punishment trials, two direct state appeals,
three state habeas proceedings, and a prior federal habeas review and appeal, during
most of which his mitigating evidence was in issue. He was originally convicted and
sentenced to death in 1991 for a murder on August 19, 1989. State v. Robertson, No.
F89-85961-NL (Crim. Dist. Ct. No. 5, Dallas County, Tex. Feb. 11, 1991). The
Texas Court of Criminal Appeals (“CCA”) affirmed the sentence and subsequently
denied habeas-corpus relief as well. Robertson v. State, 871 S.W.2d 701 (Tex. Crim.
App. 1994); Ex parte Robertson, WR-30,077-01 (Tex. Crim. App. Nov. 18, 1998).
This court denied federal habeas relief, and the Court of Appeals denied a certificate
of appealability. Robertson v. Johnson, 234 F.3d 890 (5th Cir. 2000). The Supreme
Court then vacated the judgment of the Court of Appeals and remanded for further
consideration in light of Penry v. Johnson, 532 U.S. 782 (2001) (holding that
“nullification” jury instructions in Texas capital murder trial failed to correct previous
failure to provide jury with a vehicle to give effect to mitigating evidence). Robertson
v. Johnson, 533 U.S. 901 (2001). On remand, the Court of Appeals subsequently
affirmed the denial of habeas relief, finding that the special issues in Robertson’s trial
allowed the jury to give mitigating effect to his proffered evidence. Robertson v.
Cockrell, 325 F.3d 243 (5th Cir. 2003) (en banc). On subsequent state habeas review,
the CCA later vacated the death sentence and ordered a new punishment hearing,
concluding that the nullification instruction to the jury impermissibly limited the
jury’s ability to consider and give effect to mitigating evidence presented during
Robertson’s first trial, Ex parte Robertson, No. AP-74,720, WR-30077-02, 2008 WL
748373 (Tex. Crim. App. Mar. 12, 2008). The second punishment hearing was
conducted in 2009 and resulted in another death sentence which was affirmed on
direct appeal in 2011. Robertson v. State, No. AP-71,224, 2011 WL 1161381 (Tex.
Crim. App. 2011). State habeas relief was sought on this second death sentence and,
after an evidentiary hearing in the trial court, was denied on January 9, 2013. Ex
parte Robertson, No. WR-30077-03, 2013 WL 135667 (Tex. Crim. App. Jan. 9,
2013).
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ascertain the extent of any prior mitigation investigations and, consequently, the need
for more investigative assistance.
IV.
For the reasons set out above, the following procedure will apply in requesting
leave to proceed ex parte in seeking funding in this case. Petitioner should file and
serve respondent with the motion seeking authorization for investigative or expert
expenses, and include a case-specific statement of the need for confidentiality
regarding any matters sought to be considered ex parte. The motion should include
the type of services needed, the issue or topic for which the services are necessary, an
estimate of the total amount of fees and expenses requested, and all other
nonprivileged information relevant to the request for funding. The motion must also
show a specific need for confidentiality in the undisclosed matters presented to the
court ex parte, and not merely a general assertion of a blanket attorney/client or workproduct privilege. Without revealing information itself privileged, petitioner must
provide enough information to respondent to (1) enable him to test the merits of the
privilege claim, and (2) provide him a meaningful opportunity to supply any relevant
information to the court regarding whether the requested services are necessary.
Simultaneously, petitioner may file ex parte and under seal his application for
authorization for the investigator or expert, including the specific identity and

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qualifications of the investigator or expert sought to be appointed and a detailed
estimate of the projected time, hours, and expenses to be incurred.
Petitioner must provide factual support for the funding request, including any
pertinent state court records and prior funding records, but may only exclude
privileged matters from the motion served on respondent. In the response to the
motion for leave to proceed ex parte, respondent may oppose both leave to proceed ex
parte and the funding that is sought. Respondent should provide all pertinent state
court records not already filed or produced by any party prior to that time, including
any available records of payments for prior investigations, attorney, or expert services.
Any information that should not be revealed publicly, even though not rising to the
level of confidentiality warranting its consideration ex parte, may be filed under seal
and otherwise properly disclosed to the opposing party.7
V.
The court finds that petitioner has not made a proper showing concerning the
need for confidentiality. Petitioner may either supplement his motions for leave to
proceed ex parte with the information listed above within 21 days of this order, or he

Regarding court filings, the term “ex parte” refers to those that are
“made at the instance and for the benefit of one party only, and without notice to, or
argument by, any person adversely interested.” Blacks Law Dictionary 657 (9th ed.
2009). The term “seal” refers to a “fastening that must be broken before access can
be obtained.” Id., at 1466. In federal court, a sealed record is one that has restricted
access. An ex parte record is one that is accessible to only one party and the court.
Therefore, an ex parte record is always sealed, but a sealed record is not always ex parte.
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may serve the applications upon respondent that were previously tendered ex parte.
Respondent is allowed 14 days from the date that any supplemented motion for leave
to proceed ex parte or re-filed application is filed to make his response. Extensions of
time may be granted for good cause shown.
SO ORDERED.

June 13, 2013.

___________________________________
A. JOE FISH
Senior United States District Judge

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