Jones v. Stephens, Director TDCJ-CID

Filing 123

OPINION AND ORDER DENYING LEAVE TO PROCEED EX PARTE ON FUNDING APPLICATION denying 121 Motion for Leave to File filed by Quintin Phillippe Jones... The Clerk is instructed to UNFILE Joness sealed Opposed First Application for Funding [doc. 122]. Jones may refile the motion for leave to address a specific need for confidentiality or he may file a funding application in the regular, public course of court business. See Order for further specifics. (Ordered by Judge Terry R Means on 5/30/2014) (krg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
QUINTIN PHILLIPPE JONES,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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§ CIVIL ACTION NO. 4:05-CV-638-Y
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§
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(death-penalty case)
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§

OPINION AND ORDER DENYING LEAVE TO PROCEED EX PARTE
ON FUNDING APPLICATION
(with instructions to the clerk)
On May 23, 2014, Quintin Phillippe Jones filed a Motion for Leave
to Proceed Ex parte on his Opposed First Application for Funding [doc.
121]. The motion reflects that Respondent opposes it.1 Jones seeks
funds “for mitigation investigative services to assist him in the
preparation of . . . an ineffective-assistance-of-counsel Wiggins
claim” for his amended habeas petition in this death-penalty case.
The issue before the Court is whether Jones may proceed ex parte on
the application for funds.
Discussion
The relevant statute provides that when counsel seek funds for
investigative services, “No ex parte proceeding, communication, or
request may be considered pursuant to this section unless a proper

1

The Court has not waited for Respondent to file a written response
before ruling on Jones’s motion, as the due date for Jones’s amended
petition draws near. If, for some reason, Respondent contends the denial
of the motion prejudices him in some way, then Respondent may file a
motion requesting reconsideration of this order.

showing is made concerning the need for confidentiality.” 18 U.S.C.
§ 3599(f); Gary v. Georgia Diagnostic Prison, 686 F.3d 1261, 1262
n.1 (11th Cir. 2012) (stating that § 3599 addresses both persons under
indictment in federal court and state prisoners under a death sentence
who petition for a federal writ of habeas corpus).

This provision

changed the ex-parte process provided by the former statute to a
process that is not to be held ex parte unless the proper showing
is made. See Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997).
The current statute has been interpreted to require a petitioner
seeking

expense

authorization

ex

parte

to

include

a

“short

case-specific statement of the need for confidentiality.” See Patrick
v. Johnson, 37 F. Supp. 2d 815, 816 (N.D. Tex. 1999)(quoting Dowthitt
v. Johnson, No. H-98-3282, 1998 WL 1986954 (S.D. Tex. Dec. 2, 1998)
(not designated for publication and adopting Mitcham v. Calderon,
No. C-94-2854, 1996 WL 33322268 (N.D. Cal Dec. 20, 1996) (not
designated for publication)); see also Shields v. Johnson, 48 F. Supp.
2d 719 (S.D. Tex. 1999) (Kent, J.).

Quoting Dowthitt which

incorporated Mitcham, Patrick held that such a 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.” Patrick, 37 F. Supp. 2d at 816.
The opinion in Patrick is not binding on the Court and, as Jones
acknowledges, has been rejected by a judge of this Court and by other
courts.

See, e.g., Threadgill v. Thaler, No. 3:05-CV-2217-D, slip
2

op. at 2 n.2, 2012 U.S. Dist. LEXIS 188386 (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.).

The

superficial Mitcham standard does not address confidentiality concerns
and conflicts with the presumption in section 3599(f) that a
petitioner’s request for public funds be made in the regular, public
course of court business. Funding motions, in the Court’s experience,
have a significant potential for abuse when Respondent is denied the
opportunity to address the accuracy of the assertions supporting them.
Accord Crawford v. Washington, 541 U.S. 36, 49 (2004) (recognizing
in historical account of cross-examination practices that ex-parte
evidence “very seldom leads to the proper discovery of truth.”).
How, exactly, a petitioner can explain the need to proceed ex
parte without disclosing the very information he claims a need to
keep secret may be unclear, but it is not impossible.

See Haight

v. Parker, No. 3:02-CV-206-S, 2010 WL 1489979, at *9 (W.D. Ky. Apr.
13, 2010); Shields, 48 F. Supp. 2d at 720.

One judge has observed

that all of prior counsel’s relevant communications and work product
is laid bare during the course of litigating an ineffective-assistance
claim, that no privilege would protect information already known to
the respondent (not an immaterial consideration in habeas proceedings,
which begin after state litigation has ended), and that a habeas
petitioner (who challenges his presumptively valid state conviction)
may have a lesser interest than a criminal defendant has in protecting

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the identity of his witnesses. Robertson v. Stephens, No. 3:13-CV728-G, 2013 WL 2658441, at *3 (N.D. Tex. June 13, 2013) (Fish, Sr.
J.).
Despite Jones’s tacit acknowledgment of these cases,2 his motion
identifies only the type of services needed and the broad issue he
seeks to raise. He then asserts, “The Application should be sealed
and heard ex parte because, as the Court’s en camera review of it
will reflect, it discusses counsel’s assessment of representation
needs to justify the funding request and such assessment constitutes
confidential work product.” Motion at 4. Essentially, Jones asserts
that his very argument justifying the funding request is a privileged
matter.

This showing fails to satisfy even the lesser standard in

Patrick because it is not a case-specific need, but “only a generic
need for confidentiality which arises in virtually all capital cases.”
See Patrick, 37 F. Supp. 2d at 816; see also Graves v. Johnson, 101
F. Supp. 2d 496, 499 (S.D. Tex. 2000); Shields, 48 F. Supp. 2d at
720. If such an assertion satisfies section 3599, the confidentiality
provisions in the statute would be rendered a nullity.
Instructions
The motion for leave is DENIED [doc. 121].

The Clerk is

instructed to UNFILE Jones’s sealed Opposed First Application for
Funding [doc. 122]. Jones may refile the motion for leave to address

2

In fact, lead counsel in this case is the appointed counsel in
Robertson.

4

a specific need for confidentiality or he may file a funding
application in the regular, public course of court business.
SIGNED May 30, 2014.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:bb

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