Jones v. Stephens, Director TDCJ-CID

Filing 127

OPINION AND ORDER DENYING MOTION FOR FUNDS denying 124 Motion... see Order for specifics. (Ordered by Judge Terry R Means on 6/20/2014) (krg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
QUINTIN PHILLIPPE JONES,
Petitioner,

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

V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

OPINION AND ORDER DENYING MOTION FOR FUNDS
The due date for Quintin Phillippe Jones’s amended petition in
this case is June 23, 2014. On June 3, 2014, Jones filed his Opposed
First Motion for Funding (“Motion”) [doc. 124].1 Jones seeks $30,000
“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

Respondent has filed a response in opposition [doc. 125].

case.

For the

following reasons, the Court denies the request for funds.
I.

Background Facts

A recitation of background facts is necessary to place this
funding motion in context.

In 2005, the Court appointed federal

habeas counsel Jack Strickland for the purpose of preparing Jones's

1

Jones files this Motion under objection because the Court denied
his original request on May 23, 2014, to file it under seal and proceed
ex parte [doc. 123]. The Court denied the request because Jones did not
demonstrate a case-specific need for confidentiality as required by
statute.
See 18 U.S.C. § 3599(g).
It was, and apparently remains,
Jones’s position that his argument to support the funding request is
itself confidential and privileged. Motion at 5-6.

application for writ of habeas corpus [doc. 8].

That petition was

filed but dismissed as time-barred on September 21, 2007 [doc. 28].
Jones’s current lead counsel was appointed as substitute counsel on
March 21, 2008. The Order Appointing Substitute Counsel states that
she was appointed “to adequately represent [Petitioner’s] interests
in federal court and pursue on his behalf whatever legal avenues may
be available to him.” Order Appointing Substitute Counsel [doc. 31].
Repeated assertions in the funding motion to the contrary
notwithstanding, this Court has not limited the scope of substitute
counsel's representation or her claimed compensation for that
representation in any way.

Since her appointment, present counsel

has mainly pursued equitable-tolling issues in this Court and on
appeal.

She has not pursued equitable tolling issues exclusively,

however. In February of 2009, present counsel prepared and submitted
for filing an 84-page amended petition raising four new claims in
addition to the claims contained in the initial petition filed by
Strickland.

Amended Petition of Jones (filed as Exhibit to Motion

for Leave) [doc. 57-2] (“Amended Petition”). The new claims allege
(1)"actual innocence" of capital murder due to "settled insanity"
caused by mental impairments; (2) a violation of the right to
reasonable doubt and presumption of innocence, due to the absence
of mental-impairment evidence at the guilt/innocence phase of trial;
(3) the denial of the right to a fair defense, based on the absence
of mental-impairment evidence at the guilt/innocence phase of trial;

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and (4) ineffective assistance of trial counsel for failing to timely
investigate, develop, and present, in all phases of trial, crucial
information about Jones's mental impairment and life history.
(Amended Petition at 8, 35, 39, 41.)
These claims were all based on the same set of alleged facts,
namely, that Jones had a long-standing, involuntary addiction to
alcohol and to "polysubstances," had suffered from traumatic physical
and sexual childhood abuse, and had dissociative personality disorder
caused by the abuse. (Amended Petition at 8-13.) For support, the
amended petition relied on lead trial counsel’s billing records [doc.
57-3], the 2001 report of the trial team’s psychologist, Dr. Carol
Wadsworth [docs. 57-2]; as well as the trial testimony of a another
defense expert, Dr. Raymond Finn; and the trial testimony of Jones’s
sister; Jones’s girlfriend; and the State’s lead investigator. All
variously described Jones’s use of drugs and alcohol, childhood sexual
abuse by siblings, suicide attempts, self-injuring behavior, and
Jones’s alternate personality, “James.” (Amended Petition at 8-13.)
The

ineffective-assistance claim in particular asserted that

trial counsel failed to timely investigate, devlop, and present in
all phases of trial “crucial information about Mr. Jones’s mental
impairments and his life history.”

(Amended Petition at 41.)

As

this Court has previously observed, however,2 the amended petition

2
See Memorandum Opinion and Order on Remand Dismissing Petition for
Writ of Habeas Corpus at 21 [doc. 101].

3

did not actually identify any overlooked mitigating evidence; rather
it

focused on the timing of the investigation.

It asserted that

counsel’s late investigation resulted in a failure to make strategic
choices and a failure to integrate into all phases of trial “an
effective theory of the case,” and deprived Jones of a “fair defense.”
(Amended Petition at 42-46.)
The Court denied leave to file the amended petition when the
Court dismissed the original petition as untimely in 2009 [doc. 60].
While the case was on appeal, however, the Supreme Court issued
Holland v. Florida, 560 U.S. 631 (2010), which signaled a change in
equitable-tolling analysis.

The case was remanded for this Court

to consider Holland in the first instance, and the Court initially
dismissed the petition again.

See Memorandum Opinion and Order on

Remand Dismissing Petition for Writ of Habeas Corpus [doc. 101].
The Court then granted equitable tolling based on a new argument made
for the first time in Jones's 2013 post-judgment motion but which
was available when substitute counsel was first appointed in 2008.
See Memorandum Opinion and Order Granting Petitioner’s Motion to Alter
Judgment [doc. 113].
In the context of recognizing the unfairness that would result
to Jones from the “perfect storm of post-conviction counsel” were
the Court to reject counsel's belated equitable-tolling argument,
this Court noted that substitute counsel had failed to bring to light
an argument that was available when she was first appointed "to

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represent Jones for the sole purpose of challenging the dismissal
of his petition as time-barred."

Memorandum Opinion [doc. 113] at

11. Counsel has often repeated the quoted statement out of context
in an attempt to show that her representation thus far has been
limited to the issue of equitable tolling, thereby implying that this
is the first opportunity for counsel to evaluate the issues for which
she seeks funding. See Motion at 5, 7; see also Second Motion Opposed
Motion for Continuance at 2-3 [doc. 126]; Opposed Motion for
Continuance at 1-2 [doc. 116].
The assertion that substitute counsel has been limited in the
scope of her representation is contradicted by the broad language
of her appointment order, which authorized her to pursue "whatever
legal avenues" were available to Jones.

It is also belied by the

actual work she performed on the amended petition--for which she was
compensated in 2009.

Whether or not counsel now deems her prior

efforts sufficient, there is no question that counsel previously
investigated, prepared, and was compensated for an amended petition
containing substantially the same issues for which she now seeks
funding.

The Court now turns to that request.
II.

Applicable Law

A district court may authorize expenditures for investigative
or expert services that the court finds to be “reasonably necessary.”
See 18 U.S.C. § 3599(f).

For requests that exceed $7,500, a

petitioner must further show that the excess funding is “necessary

5

to provide fair compensation for services of an unusual character
or duration” and receive approval from the chief judge of the circuit
or his designee. See 18 U.S.C. § 3599(g)(2). A district court does
not abuse its discretion in denying funds 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) (discussing
predecessor statute) (citations omitted).
Even where a petitioner establishes a nexus between the requested
services and a claim of a constitutional dimension, however, the
statute is not intended to fund fishing expeditions. See, e.g., Lynch
v. Hudson, No. 2:07-cv-948, 2009 WL 3497486, *14 (S.D. Ohio Oct. 29,
2009) (denying request made “out of an abundance of caution” to reinvestigate mental retardation claim through additional testing);
Patrick v. Johnson, 48 F. Supp. 2d 645, 647 (N.D. Tex. 1999) (holding
that statute was not designed to provide habeas petitioners with
unlimited resources to investigate speculative claims); DeLong v.
Thompson, 790 F. Supp. 2d 594, 616-17 (E.D. Va. 1991) (holding that
proposed investigation of trial counsel and trial judge amounted to
“fishing expedition”).

While § 3599(f) entitles a petitioner to

reasonably necessary investigative services, it does not authorize
federal habeas “retrials.”

See Williams v. Taylor, 529 U.S. 362,

6

386 (2000) (Stevens, J., plurality op.) (explaining the purposes of
the Anti-Terrorism and Effective Death Penalty Act).
III.

Discussion

Jones seeks $30,000 to retain an investigator to perform a 400hour mitigation investigation in accordance with the 2008 American
Bar Association Supplementary Guidelines for the Mitigation Function
of Defense Teams in Death Penalty Cases.
proposed mitigation investigator).

See Ex. 5 (estimate by

Jones concedes that the issue

he intends to investigate--trial counsel’s effectiveness--was not
raised in state habeas court and may be procedurally defaulted. Thus,
he also intends to use funds to demonstrate that state habeas counsel
was ineffective in order to overcome any procedural default under
Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (holding that “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.”).

Motion at 23-24.

Generally, Jones contends that (1) trial counsel unreasonably
narrowed the mitigation investigation in light of the information
they possessed and due to self-imposed time constraints and (2) an
investigation into what information would have been discoverable by
effective counsel has never been conducted by any previous counsel.

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a.

Reasonable Necessity

The motion does not identify the existence of a lead that trial
counsel failed to follow or demonstrate what Jones expects to find
with a new investigation. It identifies four “red flags” that need
to be investigated:

severe, long-standing involuntary alcohol

addiction; physical and sexual childhood abuse; long-standing and
involuntary addiction to poly-substances; and dissociative disorder
as a result of physical and sexual abuse. But Jones does not explain
why these issues, discussed more fully below, are “red flags”
requiring investigation beyond what trial counsel did.

The motion

simply concludes that trial counsel “likely” failed to conduct an
adequate mitigation investigation into Jones’s life history and
proposes what appears to be a full-blown psychosocial history
investigation, including genetic and environmental influences;
maternal and paternal history of drug and alcohol abuse, suicidal
tendencies, and gambling addiction; his home life; sexual molestation;
mental health, including special education, emotional disturbance
in fourth grade, self-injury, and drug abuse; and “delay in the
appointment of counsel.”3

Motion at 26-27.

In support, the motion asserts that, although an investigator
was appointed at least five months before voir dire began, the

3

This latter request to investigate the delay in the appointment of
counsel refers to a claim raised by Strickland in Jones’s original
petition. See Petition at 3[doc. 19]. It abruptly appears on the last
page of the 28-page motion and contains no argument. As such, there is
nothing for this Court to decide vis-a-vis this claim.

8

investigation only began the month before trial (according to billing
records)--after voir dire had begun.

The motion contains general

assertions of deficient investigation based upon the hours billed
by

trial

counsel

and

the

investigator,

Janie

Brownlee,

for

interviewing witnesses. It also states that there is no work product
from Brownlee, such as interview notes, social history, genogram,
or timeline, and no record that the defense attempted to locate
“former teachers or administrators about Mr. Jones’s placement in
special education, an evaluation of his emotional disturbance in
fourth grade, or his academic limitations.”

Motion at 12, 13. The

motion concludes that “there does not appear to have been sufficient
investigation” into Jones’s drug and alcohol use, a potential
involuntary intoxication defense, or his intellectual functioning.
Motion at 14.
While Jones’s proposed mitigation investigator states that 2008
ABA guidelines require a minimum of one year’s preparation and between
350 and 800 hours to adequately prepare for a capital defense, Jones
provides no authority that the ABA guidelines are the standards for
a reasonable trial investigation in 2001 when Jones was tried or
are

the

current

standards

for

federal

habeas

representation.

Moreover, the investigative hours spent by the defense team as a whole
are not clear from the billing records, nor do the billing records
consistently identify persons sought, witnesses interviewed, or
matters investigated.

Given the other evidence in the record,

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discussed below, the Court does not view these circumstances as
demonstrating a reasonable need to conduct a 400-hour investigation.
Notably absent from the motion is an assessment of the
information obtained by the trial team’s two mental-health experts,
Dr. Raymond Finn and Dr. Carol Wadsworth.

Dr. Finn’s testimony to

the jury, for example, indicates that he interviewed Jones’s
girlfriend, brother, and sister.

(35 RR 139.)

He also looked at

school records from the age of four until high school, psychiatric
hospitalization records from John Peter Smith Hospital, and police
investigative reports.

(35 RR 140.)

The hospital records, which

apparently concern a suicide attempt by Jones, were admitted into
evidence. (35 RR 141.) Finn also administered to Jones the Wechsler
intelligence test, the Rorschach “inkblot” test of personality, a
court competency test, the Gudjohnnson suggestibility test, a
psychopathy checklist, and a Violence Risk Appraisal Guide. (35 RR
142-44.)
Dr. Wadsworth diagnosed Jones in 2001 with heroin and cocaine
dependence, dysthymic disorder (early onset), reading disorder,
disorder of written expression, borderline personality disorder,
antisocial personality disorder, and pain secondary to a selfinflicted gunshot wound to the chest.

Her 2001 report identifies

heavy alcohol abuse beginning at age 11; near daily marijuana use
from age 12 to 20; inhalant use; the use of Valium, codeine, Tylenol
pain pills and other prescription drugs when available; methamphet-

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amine use; daily cocaine use from age 14 to 20; crack use; and daily
heroin use from age 15 to 20.

She describes other syndromes,

including “borderline personality organization,” with symptoms of
suicidal and self-mutilating behavior, and dissociation. She states
that Jones’s school records indicate “long term emotional disturbance,” including an incident in fourth grade when Jones brought an
unloaded pellet gun to school, placed it on his forehead, and pulled
the trigger several times. She states Jones’s history includes sexual
abuse and neglect.

She describes a suicide attempt followed by

treatment in “JPS’s psychiatric facility” at age 16 and enrollment
in “Charter” for one week at age 18.

She describes his sister’s

hospital admission for suicidal tendencies, a brother who abused
alcohol and drugs, a father who abused alcohol, and a mother who used
crack and gambled extensively.

Jones’s educational and employment

history also is described in some detail. Psychological Evaluation
[doc. 57-3]. Except to acknowledge how much they were paid and that
the files of Dr. Finn are no longer available, the motion fails to
attribute the work of these two defense-team members that is apparent
in the record.
The motion asserts that the investigation requested has never
been conducted by any previous counsel but, as discussed above,
present counsel must have completed what she considered sufficient
investigation to support the amended petition that she submitted in
2009.

It also asserts that present counsel (in contrast to the

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insufficient efforts of Strickland), “have learned that by the age
of 24 (since the age of 13), Petitioner engaged in nearly 11 years
of heavy, constant drug and alcohol abuse,” and asserts that “at no
time did [Strickland] ask [Jones] about his drug and alcohol abuse.”4
Present counsel assert that they “have learned that Petitioner began
using marijuana at the age of 12... [and] began to drink large of
amounts of alcohol ... [and] was snorting cocaine, snorting heroin,
using cocaine, crank, and heroin intravenously, and also began to
smoke crack cocaine.” Motion 19. In truth, all of this information
“learned” by present counsel appears in Dr. Wadsworth’s 2001 report
[doc. 57-2]. It is also, to some extent, present in the trial record.
(35 RR 10, 33, 35, 69, 73-74.)

This testimony, and more, was cited

in the proffered 2009 amended petition.

Amended Petition at 8-13

[doc. 57-1]. To the extent the motion implies that any of this
information has been newly discovered by recent efforts of present
counsel, it contradicts the record.
The motion asserts that present counsel must investigate “what
information would have been reasonably discoverable had trial counsel
not foreclosed investigation into certain information” but does not
identify what was, in fact, foreclosed or what present counsel hopes
to find. Motion at 6. The motion fails to acknowledge the full scope
4

However, in a letter written by Jones to Strickland in 2004, and
provided to the Court by current counsel, Jones states that, during a
recent visit, "you asked about my medical records (gun shots, and when
I was admitted to the nuthouse) and my school records when I was in
special ed classes."
Exhibit F to Jones's Post-Holland Brief [doc.
86-6].

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of the investigation that was done by the trial team and the evidence
presented to the jury, and rests on the assumption that every habeas
petitioner is entitled to re-do the mitigation investigation under
current ABA guidelines to see what may have been missed. The funding
statute is not designed to provide petitioner with unlimited resources
to investigate speculative claims. Patrick, 48 F. Supp. 2d at 647.
Jones does not demonstrate a reasonable necessity for the funds
sought.

See Wilkins v. Stephens, 2014 WL 1202524, at *12, No. 13-

70014 (5th Cir. Mar. 25, 2014) (stating that habeas petitioner is
not entitled to investigative funds when he offers little to no
evidence that the proposed investigative avenues hold any significant
chance for success).
b.

Services of an Unusual Character or Duration

Because Jones’s request for $30,000 exceeds the statutory limit
of $7,500, he must further show that the excess funding is “necessary
to provide fair compensation for services of an unusual character
or duration” and receive approval from the chief judge of the circuit
or his designee. See § 3599(g)(2). The motion does not address this
issue.

It is therefore properly denied for the additional reason

that it is inadequate to certify to the Fifth Circuit.
c.

Bars to Litigation

Jones concedes that the claim for which he seeks funds is
unexhausted, but argues that this does not preclude funding because
Martinez would excuse any procedural bar caused by Strickland’s

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ineffective representation in the state habeas proceedings. Motion
at 23.

Respondent argues that Jones’s reliance on Martinez is

misplaced because Martinez does not address funding in federal court.
Respondent also asserts that Jones’s argument would require funding
for every petitioner with an unexhausted claim of ineffective
assistance against trial counsel.
The Court does not disagree that a petitioner may be entitled
to federal funds under the proper circumstances to investigate an
unexhausted claim against trial counsel.

This is not one of those

cases, however. To the extent Jones argues that Martinez justifies
an investigation into the representation of state habeas counsel
Strickland, the Court observes that years of prior litigation on
equitable tolling in this case were focused on allegations of
ineffective assistance against Strickland for multiple reasons,
including his alleged failure to investigate mitigation issues. See
Post-Holland Brief of Jones at 27 [doc. 86]; Reply to Respondent’s
Motion to Dismiss Jones’s Petition as Time-Barred at 4-6 [doc. 55];
Motion for Relief from Judgment at 3-11 [doc. 35]. While the Court
concluded Strickland negligently miscalculated a filing deadline,
it rejected Jones’s contention that Strickland failed to investigate
mitigation issues due to his personal relationship with trial counsel.
Opinion and Order on Remand at 20-21 [doc. 101]. The present motion
does

not

demonstrate

a

reasonable

14

expectation

that

further

investigation into this matter will produce anything substantially
different or more helpful to Jones.
Respondent also contends that the new claim Jones seeks to fund
would be time-barred because it does not relate back to the original
petition for which Jones was granted equitable tolling.

See Fed.

R. Civ. P. 15(c). Respondent further argues that Martinez has been
held not to provide an exception to the statute of limitations. See
Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014) (concluding that
Martinez relates to excusing procedural default and does not apply
to the statute of limitations or the tolling of that period). This
argument is well-taken.
Jones’s motion is silent on this issue, and although the time
for Jones to file a reply addressing this argument will not expire
until after Jones’s amended petition is due, the time-bar issue is
not a surprise to Jones.

In fact, Jones’s motion for leave to file

his 2009 amended petition cites the requirement in Rule 15(c) that
new claims must relate back to the original petition.

Motion for

Leave to File Amended Habeas Petition at 2 [doc. 57].

Yet counsel

did not make an anticipatory argument in his motion regarding the
time bar (as he did with the procedural bar), and counsel chose to
file the funding motion when normal court deadlines prevented the
filing of a reply before the due date of the amended petition.

In

the week that Jones has had to file a reply to Respondent’s arguments

15

on this matter, he instead filed another motion for “continuance”
to extend the due date of his amended petition [doc. 126].
Equitable tolling is an extraordinary and limited remedy, as
the parties well know. This investigation is requested eight years
after the original petition was filed and six years after the
appointment of substitute counsel.

Even if further investigation

could produce anything substantially different that could form the
basis of a new claim, Jones has not shown how any new claims produced
by the additional funding would not be time barred.

Accordingly, the motion is DENIED [doc. 124].
SIGNED June 20, 2014.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:bb

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