Crutsinger v. Stephens, Director TDCJ-CID

Filing 120

MEMORANDUM OPINION AND ORDER DENYING RULE 60(b) MOTION AND, IN THE ALTERNATIVE, DENYING AUTHORIZATION OF FUNDS: The Court concludes that Crutsinger has not demonstrated extraordinary circumstances sufficient to justify reopening the judgment. The Rule 60(b) Motion is DENIED. (Ordered by Senior Judge Terry R Means on 8/8/2019) (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BILLY JACK CRUTSINGER,
Petitioner,
v.

§
§
§
§
§
§
§
§
§

LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

No. 4:07-CV-00703-Y
(death-penalty case)

MEMORANDUM OPINION AND ORDER DENYING RULE 60(b) MOTION AND,
IN THE ALTERNATIVE, DENYING AUTHORIZATION OF FUNDS

Eleven years ago, this Court denied federal habeas petitioner
Billy Jack Crutsinger's request under 18 U.S.C.

§

3599(f) for funds

to investigate an unexhausted and procedurally barred claim of
ineffective trial counsel. That ruling was correct under the law,
but the law has since changed. It may now be error for a district
court to refuse needed funding in cases where there is a credible
chance

it

would

enable

the

petitioner

to

overcome

procedural

default - -and the ineffectiveness of state habeas counsel may overcome procedural default for claims of ineffective trial counsel.
Ayestas v . Davis, 138 S. Ct. 1080, 1094 (2018); Trevino v . Thaler,

569 U.S 413 (2013); Martinez v . Ryan, 566 U.S. 1 (2012).
The questions now before the Court are whether the circumstances require reopening this case under Federal Rule of Civil
Procedure 60(b) (6)

and,

if so,

whether Crutsinger has made the

necessary showing for funding under

§

3599(f) . The Court answers

both of these questions in the negative.

I.

RULE 60(b) (6) Motion

The Court assumes the parties' familiarity with the history of
the case as set out in the Court of Appeals' remand order and will
not repeat it.

See

Crutsinger v.

No.

Davis,

18-70027,

2019 WL

2864445 (5th Cir. July 3, 2019).
Federal Rule of Civil Procedure 60(b) (6)

allows a district

court to grant relief from a final judgment, order, or proceeding
for any reason that justifies relief. See Fed. R. Civ. P. 60(b) (6).
District courts have jurisdiction to consider Rule 60(b) motions in
28 U.S.C.

§

2254 habeas-corpus proceedings so long as the motion

attacks not the substance of the court's resolution of the claim on
the merits but some alleged defect in the integrity of the habeas
proceedings . See Gonzalez v.

Crosby,

545 U.S.

524,

532 nn. 4,

5

(2005) . The United States Court of Appeals for the Fifth Circuit
held that this Court has jurisdiction to decide Crutsinger's Rule
60(b) motion. Crutsinger, 2019 WL 2864445, at *4.
To

justify

reopening

the

judgment,

Crutsinger

must

show

"extraordinary circumstances." See Gonzalez, 545 U.S. at 535. Such
circumstances will rarely occur in the habeas context . Id .

(paren -

thetically noting that this strict interpretation is essential to
preserve

the

finality

of

judgments) .

In

determining

whether

extraordinary circumstances exist, this Court may consider a wide
range of factors,

including, in an appropriate case, the "risk of

injustice to the parties" and the "risk of undermining the public's
2

confidence in the judicial process." Buck v. Davis, 137 S. Ct. 759,
778 (2017). A change in the Supreme Court's interpretation of the
AEDPA is rarely extraordinary by itself. See Gonzalez, 545 U.S. at
536 (stating that it is hardly extraordinary that , after Gonzalez's
case was

no

longer pending,

the

Supreme Court interpreted the

statute differently)
As the Court of Appeals has already acknowledged,

circuit

precedent appears to foreclose Crutsinger ' s reliance on the changes
in law brought by Martinez / Trevino.

Crustinger v. Davis, No. 18-

70027, 2019 WL 3243399, at *2 n.1 (5th Cir. July 19, 2019)

(order

denying stay); see Adams v. Thaler, 679 F. 3d 312, 319-20 (5th Cir.
2 012) (rejecting argument that Martinez and t h e equitable imperative
that

the

"true merit of

the cause be heard"

constitute extra-

ordinary circumstances in death-penalty case); Diaz v . Stephens,
731 F.3d 370,

376

(5th Cir.

2013)

(holdi ng that Trevino did not

undermine Adams) .
Crutsinger's

reliance

on

the

changes

in

law

brought

by

Martinez / Trevino appears to be foreclosed by Gonzalez as well. In
Gonzalez, the Supreme Court held that a change in equitable-tolling

law

under

the

AEDPA

did

not

constitute

an

extraordinary

circumstance that justified reopening the district court's dismissal

of

further

Gonzalez's
stated

petition

that

the

as

time-barred.

change

in

law

The
was

Supreme
"all

the

Court
less

extraordinary in petitioner's case because of his lack of diligence

3

in pursuing review of the statute-of-limitations issue." Gonzalez,
545 U.S. at 636-37.
Here,

the

changes

in

the

law

affecting

funding

are,

if

anything, less extraordinary than the changes discussed in Gonzalez
because a lack of funding did not prevent Crutsinger from presenting a claim . Unlike Gonzalez,
this

Court

addressed

at

length

ineffective-trial-counsel claim

whose petition was dismissed,
the

(IATC)

merits

of

based on

Crutsinger's
the

timing of

counsel's investigation. Crutsinger v. Thaler, No. 4:07-CV-703-Y,
2012

WL

369927,

at

*4-13

(N.D.

Tex.

Feb.

6,

2012).

Although

Crutsinger did not develop or present this particular IATC claim in
state court (he presented different ones) , the record in this Court
was sufficient to make an informed merits review, as discussed in
the pages that follow.
Nevertheless, Crutsinger asserts that the following additional
factors together create extraordinary circumstances that justify
reopening the judgment:
1.

The nature of the proceedings as habeas corpus, in
which traditional res-judicata rules have never
applied, and the careful adjudication of which the
Supreme Court has called the highest duty of a
federal court, citing Preiser v. Rodriguez, 411
U.S. 475, 497 (1973) and Harris v. Nelson, 394 U.S.
286, 292 (1969).

2.

The nature of the case as a capital case.

3.

The nature of the alleged defect as a deprivation
of guaranteed representation, which is structural
in nature and undermines public confidence in the
judicial process.
4

4.

The nature of the alleged defect, which operated to
preclude hearing the true merits of the case
because it thwarted Crutsinger's ability "even to
discover and allege material facts in support of
claims he sought to pursue in good faith."

5.

The fact that the Supreme Court specifically
mentioned this case in Ayestas, 138 S. Ct. at 1093.

6.

The facts underlying the claims affected by the
alleged defect are egregious,
including that
petitioner's trial counsel went to trial only five
months after being appointed in a capital case and
state habeas counsel effectively abandoned him.

7.

Crutsinger has exercised extraordinary diligence in
pursuing his representation rights.

(Opposed Motion for Relief from Judgment Pursuant to Fed. R.
Civ. Proc. 60(b) (6), p . 24-26 (Dkt. No. 90); Supplemental Brief in
Support of Motion for Relief from Judgment, p. 3-4 (Dkt. No. 111) .)
The Court addresses these factors below.
Factors 1, 2 (capital habeas nature of the case)
Crutsinger' s assertion that Rule 60 (b) (6)

relief is proper

because this is a death penalty proceeding in the nature of habeas
is not persuasive because the cases offered in support (Preiser and
Harris) do not address Rule 60(b) or the reopening of a judgment.

Further,
changed

these
and

cases

limited

pre-date
the

the

AEDPA,

availability

of

which
habeas

significantly
relief.

See

Gonzalez, 545 U.S. at 530; see also, e.g., Teague v. Lane, 489 U.S.

288

(1989)

(holding that new constitutional

rules

procedure generally do not apply on habeas review) .

5

of

criminal

The opinions in Adams, 679 F .3d 312 and Diaz, 731 F.3d 370,
which

were

death-penalty

cases,

also

undermine

Crutsinger's

argument that all death-penalty habeas cases are extraordinary for
purposes of Rule 60(b). To hold otherwise would render meaningless
the strict limits on Rule 60 (b) ( 6)

relief. As the Supreme Court

noted in Harris,

the courts have no power to

394 U.S.

at 298,

rewrite the rules by judicial interpretations.
Factor 3 (st ructural error)
Crutsinger wrongly characterizes the alleged defect in this
proceeding

as

structural

error

in

the

form

of

the

denial

of

representation. This Court's 2008 ruling on his motion for funding
was not a
law,

"defect" in the proceedings.

It was correct under the

which did not allow the alleged ineffective assistance of

state habeas counsel to excuse a procedural default. See Coleman v .
Thompson, 501 U.S.

722 (1991). That did not change for Texas until

Trevino was decided in May of 2013.

In recognition of this long-standing rule, Crutsinger did not
even present in 2008 the argument under which he now claims the
Court's ruling was defective. He stated clearly that he was not
relying on the alleged ineffectiveness of his state habeas counsel
as cause to excuse procedural default:
To be sure that we are on the same page, Mr. Crutsinger
is not asserting a theory that his state habeas counsel
[ ] rendered ineffective assistance of state habeas
counsel thereby violating a constitutionally-based right
sufficient to constitute cause to excuse a procedural
default. What Mr. Crutsinger is asserting is that the
6

thereby
triggering the statutory law exception,
28 U.S.C.
2254 (b) (1) (B) (ii). Accordingly, there is no "unexhausted
claim for which funding is sought," because the doctrines
of exhaustion and procedural default are inapplicable.
state

corrective

was

process

ineffective

See Motion for Reconsideration and Amplification of Application for
Funding

and Appointment

(emphasis in original)

of

Investigator,

p.

15

(Dkt.

No.

17)

("Amended Application for Funds").

Crutsinger has modified his briefing post-Martinez to include
the argument he previously disavowed. See Opposed Motion to Alter
or Amend the Judgment under Fed. R. Civ. Proc. 59(e), p. 14,
(Dkt. No. 52); Rule 60(b) Motion, p. 1 (Dkt. No. 90)

~

28

But in 2008,

it was not a procedural "defect" to refuse to fund an unexhausted
claim. The fact that Crutsinger specifically declined to rely on
his state habeas counsel's alleged ineffectiveness as cause to
excuse default suggests a lack of diligence and a lack of extraordinariness. See Gonzalez, 545 U.S. at 537 (stating that change in
law is made all the less extraordinary by a lack of diligence) .
Factors 4 and 6 (preclusion of "true merits review" and
egregious representation by trial counsel)
Crutsinger asserts that the denial of funds precluded a "true
merits" review of the case and that trial counsel's representation
was egregious.

He concludes that,

therefore,

there is a risk of

undermining public confidence because the "erroneous" denial of
funding

dictated the outcome of

(Supplemental

Brief,

p.

4

I

8

every decision
(Dkt.

111) . )

that

followed.

This

argument

misrepresents the Court's ruling, which was not erroneous at the
7

time it was made. As such, the reopening of a proper judgment not
for

the purpose of addressing an error,

but to fund a

fishing

expedition for new claims, creates a greater risk of undermining
public confidence.

It would signal that death-penalty cases are

never final but subject to new litigation with every change in law,
regardless of the effect on the validity of the judgment.
Moreover, the assertions that the denial of funding precluded
a true merits review and that trial counsel's representation was
egregious,

border on frivolous.

Crutsinger' s

IATC

claim

that

This Court thoroughly reviewed

trial

counsel

failed

"to

timely

initiate a social history investigation, which caused counsel to
overlook evidence of
addiction,

his mental

head trauma,

Crutsinger v.

Stephens,

impairments

depression,

and low intelligence . "

576 F. App ' x 422,

abrogated on other grounds by Ayestas v.

(2018).

Crutsinger' s

caused by alcohol

425

Davis,

disagreement with the

(5 th Cir.
138 S.

Court's

See

2014),

Ct. 1080

conclusions

notwithstanding, the record before this Court was sufficient to do
so.
First, Crutsinger filed in support of his federal petition the
report from the trial mitigation specialist and forensic psychologist, Dr. Kelly Goodness, and her team. See Petition, Exhibit C . 1

1

Dr. Goodness's complete report can most easily be found at CM/ECF
docket entry 26, attachment #4, which is the unfiled version of the
Petition. Although the report was refiled under docket entry 31
(attachme nts #3 and #4), that version is missing some pages.
8

Dr. Goodness's timing, credentials, and thoroughness can therefore
be objectively assessed. Second, the state habeas record contains
an affidavit from trial counsel generally addressing their efforts
in the case. They explained that testimony from their two mentalhealth experts would not have benefitted Crutsinger at trial due to
their opinions and the fact that it would have opened the door to
an evaluation by, and testimony from, the State's expert .

see 25 RR 16-18

1529;

(7/7 SHR

(trial counsel's colloquy in open court

regarding decision not to present psychiatric testimony) . ) Third ,
Crutsinger's petition was also supported by scientific literature,
which this Court took at face value, and other materials apparently
from trial counsel's files.

(Petition, p. 67 (Exhibit Li st) . ) 2 All

of this material spoke directly to Crutsinger's claim that trial
counsel's investigation began too late and caused him to overlook
mental-health impairments.
In addition,

the trial court clerk's record includes orders

demonstrating that trial counsel had procured a fact investigator,
a psychiatrist (Barry Mills), a DNA expert

(Identagene,

Inc.), a

forensic psychologist and mitigation investigator (Kelly Goodness),
and a prison classification expert
50,

63,

67;

7/8

CR

1309 . )

The

(Walter Quijano).

clerk's

record

also

(1/8 CR 35,
reveals

a

rigorous pretrial motions practice. While this information does not

2

The Exhibit List is on . pdf page 17 to the attachment
identified as "#2 Supplement" to docket entry number 31.
9

directly reflect the sufficiency of the mitigation investigation,
it speaks to the quality of counsel's overall representation. For
example,

trial counsel targeted Crutsinger' s

confession as

the

critical piece of evidence and challenged its admissibility in four
motions to suppress and two pretrial hearings.
agreed in part,
evidence.

The trial court

ruled the arrest was illegal, and excluded some

( 25 RR 14 i 8 / 8 CR 1333 . ) Counsel also developed a claim

challenging

the

disproportionate

treatment

by

local

district

attorneys of death-eligible defendants, a claim that was commonly
presented in post-conviction litigation at the time but had never
before been factually developed.

(3 / 8 CR 287.)

These are but two

examples.
Tarrant County, where Crutsinger was tried, also practices an
open-file policy in capital-murder cases.

(32 RR 23-24

(testimony

regarding open file policy for misdemeanor cases all the way up to
capital murder).)

Thus,

all records obtained by the prosecution

would have been available to the defense.

In this

regard,

the

clerk's record contains orders for the release of records and/or
subpoena requests from:
Army,

Tarrant County Outreach,

Phoenix Association,

retardation services,

Tarrant

Tarrant

The Salvation

County Mental Health/ Mental

County Jail,

Galveston Sheriff's

Department, John Peter Smith Health Center, John Peter Smith Stop
Six Clinic, Birdville Independent School District, television news
channels, state prison health services archives, John R . Lindsey

10

State

Jail,

Osteopathic

Hospital--Fort

Medical Examiner's Office
toddler, Billy Earl),

Worth,

Tarrant

County

(concerning the death of Crutsinger's

Keller Police Department

(concerning Billy

Earl), Mount Olivet Cemetery (burial records for Crutsinger family
and Misty Juanita Crutsinger) , and Bluebonnet Hills Funeral Home
(concerning Billy Earl and Crutsinger family) .

(1/8 CR 68-71; 8/8

CR 1340-1438.) Most of these records, and many more, are included
in

the

case

material

reviewed by Dr.

Goodness.

See

Petition,

Exhibit C, Appendix A. 3
Next,

this

Court

assessed

trial

counsel's

investigative

efforts from the contents of the reporter's record. In a case such
as this, where DNA evidence tied the defendant to the crime and the
defendant

confessed

to

the

detective

and

a

jail

nurse,

the

strategies at the guilt-innocence phase are necessarily limited.
Nevertheless, counsel called the detective and four police officers
to relitigate the legality of Crutsinger's arrest before the jury.
Trial counsel presented expert testimony over the State's objection
that the arrest lacked probable cause, such that the confession and
buccal swab (from which the DNA evidence was developed ) were constitutionally tainted.

(30 RR 2-15

(hearing on admissibility of

testimony), 30 RR 29-33, 41 (expert testimony).)

3

The Appendix can be found at .pdf pages 19-21 in attachment
#4 of docket entry 26 (the unfiled petition).
11

At punishment, trial counsel called two correctional officers
and the bailiff to testify to Crutsinger's good behavior while
incarcerated. (31 RR 154, 158 (describing Crutsinger as "top of the
heap"); 32 RR 2, 7 (no write-ups), 10, 13 (no disciplinary marks,
no complaints from officers or other prisoners).) Counsel called an
assistant district attorney to downplay the seriousness of Crut singer's prior conviction for assaulting his mother by showing that
the

prosecutor

entered

adjudication probation.

into

a

plea

bargain

for

deferred

(32 RR 18-20.)

Counsel called a private detective and youth minister who met
Crutsinger three weeks before the murders while serving meals to
the homeless. He said Crutsinger was a broken man, wept heavily,
and that "the desperation in his life was overwhelming." Crutsinger
had indicated he might hurt himself.

(32 RR 33-40.)

The defense called Crutsinger's first wife, who described the
loss of their newborn daughter and said Crutsinger probably took it
harder than she. (32 RR 45-49.) Counsel called Crutsinger's current
wife, who described his drinking problem and "personality changes"
from drinking . She told the jury about the death of his sister (who
died in a car accident while Crutsinger was driving), the death of
his brother from illness, the death of h i s father who was hit by a
car, the death of his toddler son by drowning, and the death of his
teenage son who died from lymphoma.

She said Crutsinger was on

medication due to depression from all these deaths.

12

(32 RR 67-78.)

The defense called Crutsinger's sister - in-law, who also described
his huge alcohol problem but said he was kind, caring, and helpful
when not drinking and "would give you the shirt off his back." (32
RR 93-102.)
Counsel called Crutsinger's mother,

who admitted that

the

sheriff had to bring her to court because she did not want to
testify. She stated that Crutsinger's father abused alcohol, even
on the job, and that Crutsinger's bad behavi or was mostly caused by
drinking . Although she was the complainant in the assault case
against Crutsinger, she denied that he ever hit her, and said she
could not have "anybody better" when he was sober.

(32 RR 111-18,

123.)
The defense closed by calling a

classification expert who

testified about the conditions and security measures under which
Crutsinger would live if given a life sentence.

(32 RR 128-153 . )

The defense offered Crutsinger's health records from John Lindsey
State Jail and his records from the Birdville Independent School
District .

(32 RR 177 (DX 9, 10) .) Crutsinger agreed on the record

that he was sat i sfied with counsel's represe n tation and "got every
witness that we wanted . "

(32 RR 179-80.)

This Court rejected Crutsinger's allegations that the mitigation investigation was too compressed to reasonably inform trial
counsel's strategy at all phases of the trial and, in particular,
the decision not to pursue a mental-health based defense. The Court

13

also alternatively addressed the asserted prejudice, which will not
be

reiterated

here.

See

Crutsinger,

2012

WL

369927,

*7-9.

Crutsinger's argument that the "true merits" of his claim were not
heard is therefore incorrect.
Indeed, this argument is based on Crutsinger's post-judgment
attempts

to

recast

his

IATC claim as

some

other claim which,

Crutsinger alternatively asserts, was either misinterpreted by this
Court or was a claim he would have made if only this Court had
provided the requested funds. See Opposed Motion to Alter or Amend
the Judgment under Fed. R. Civ. Proc. 59(e)

(Dkt. No. 52); Order

Denying Motion to Alter or Amend the Judgment

(Dkt. No.

56).

In

denying the Rule 59(e) motion, this Court held that Crutsinger's
revamped IATC claim had no more purchase than the claim he actually
raised. See Order Denying Rule 59(e) Motion, p. 5-6 (Dkt. No. 56).
If Crutsinger's failure to obtain funding prevented him from
presenting a claim, he has not stated what exactly that claim is.
As

discussed

in

Section

II,

he

makes

general

allegations

of

purported deficiencies by trial counsel that are contradicted by
the record.

It rather appears from his most recent briefing that

Crutsinger no longer asserts that this Court misread his petition
or

that

he

was

unable

to develop

contention now appears to be that,
investigator,

federal

"representation"

habeas

a

specific

without funds

counsel

contemplated under

14

IATC

the

can

never

statute.

claim.

His

to retain an
provide
See

Reply

the
to

Response

to

Motion

to

Stay

Execution

Pending

Provision

of

Representation to Investigate and Prepare an Initial Habeas Corpus
Application,

p.

2-3

(Dkt .

No.

119) .

This

argument

belies

the

standards for discretionary funding in§ 3599(f) that are discussed
in Ayestas, and Crutsinger is no more extraordinary than any other
petitioner

represented

by

counsel

who

failed

to

meet

those

standards.
Factor 5 (Ayestas' abrogation of Crutsinqer)
The

fact

that

the

Supreme

Court

1n Ayestas

specifically

mentioned the Fifth Circuit's opinion in this case is merely a
restatement of the fact that the decisional law has changed since
the appeal was decided . In fact,

the Ayestas opinion emphasizes

that there was no error in this case before Trevino. See Ayestas,
138 S. Ct. at 1093 (holding that Fifth Circuit rule, adopted before
Trevino,

that funding request must present viable constitutional

claim not procedurally barred is, after Trevino, too restrictive).
Factor 7 (due diligence)
Assuming Crutsinger has exhibited due diligence, he fails to
provide

authority

that

diligence

plus

a

change

in

law

are

sufficient in death-penalty cases to reopen a judgment under Rule
60 (b)(6).

15

Conclusion
The

Court

concludes

that

Crutsinger has

not

demonstrated

extraordinary circumstances sufficient to justify reopening the
judgment. The Rule 60(b) Motion is DENIED .

II.
Alternatively,

if

APPLICATION FOR FUNDS

the

Court

were

to

reopen

the

case

and

reconsider the funding request under Ayestas, it would be denied.
Crutsinger's Prepetition Requests

In 2008, Crutsinger moved ex parte for authorization of $7,500
to

retain

a

mitigation

investigator.

See

Application

for

Authorization for Funding and Appointment of Investigator (Dkt. No .
13)

("Application for Funds"). Crutsinger asserted that only five

months had elapsed between his arrest and conviction,

which was

insufficient for a "thorough mitigation workup," and he asserted
that

trial

counsel

did

not

"address

knowledge" about alcohol addiction.

the

current

scientific

Crutsinger sought to retain

Toni Knox, LCSW, to develop a Wiggins/Rompilla claim and possibly
other claims. He concluded that upon information and belief, he had
meritorious claims that pivoted on his mental-health deficits and
could overcome the failure to exhaust.

Id.,

p.

2-5.

This Court

denied the motion without prejudice to his filing another motion
addressing
failure,

how

if any,

he

could

overcome

the

procedural

bar

and

his

to develop the factual basis for the claim in
16

state court.

Ex -Parte Order Denying Application for Funding and

Appointment of Investigator (Dkt. No. 14).
In his amended ex-parte motion, Crutsinger argued that he was
excepted from the exhaustion requirement because the corrective
process in state court was so clearly deficient as to render futile
any effort to obtain relief. See

§

2254 (b) (1) (B) (ii); Duckworth v .

Serrano, 454 U.S. 1 (1981). As previously noted, he said his state

habeas counsel was ineffective, but he did not assert this as cause
to excuse procedural default. See Coleman, 501 U.S. 722 .

(Amended

Application for Funds, p. 15-18 (Dkt . No . 17 ) .)
The mainstay of Crutsinger's claim against trial counsel was
that the jury's verdict was not reliable because only five months
had elapsed from the date of the offense to the date of trial.
(Amended Application for Funds,

p.

9

(Dkt.

No.

17) .)

Crutsinger

presented a declaration from Toni Knox stating that a trial-level
mitigation
complete.

investigation
See

requires

Application

for

eight

Funds,

to

twelve

Exhibit

A,~

months
9. 4

to

Knox

recommended that a "thorough mitigation investigation be completed
and a psycho-social history prepared, which can be reviewed, at a
minimum, by an expert in addiction to help explain" Crutsinger's
behavior. Although Knox referred to some trial testimony, she did
not acknowledge the investigative work that was done at trial. For

4
Ms. Knox's declaration is in the docket as "#1 Supplement"
docket entry number 13.

17

to

example,

she

stated

the

mitigation

investigation

should

have

included extensive interviews with the defendant, but she failed to
acknowledge

that Dr.

Goodness's team subjected him to fourteen

hours of interviews and testing. Id.

~

11; Petition, Exhibit C, p.

3 (Dkt. No. 26 ) .
So it was not Knox's opinion that the mitigation investigation
at trial was insufficient. Knox simply said it was of insufficient
length and recommended that "a thorough mitigation investigation be
completed . " (Application for Funds, Exhibit A,

~

15 (Dkt. No. 13 ) . )

Strangely, and contrary to her assertion that such an investigation
takes a minimum of eight to twelve months,

she stated she could

complete the investigation in 150 hours, although she might need
additional hours if further needs were identified.

(Id . ,

~

9, 17.)

Thus, Knox's ability to conduct an investigation in 150 hours, the
equiv alent

of

about

four

forty-hour

work

weeks

spent

over,

presumably, several months, appears to undermine Crutsinger's main
complaint.
In any event, Crutsinger concluded that both trial counsel and
state

habeas

counsel

left

significant

issues

"unexplored

and

unexplained," including Crutsinger's alcoholism and "personality
change"
abuse,

after one drink,

his history of

domestic violence and

and repeated losses of significant friends and relatives

during his childhood and early adulthood.
Funds, p. 11 (Dkt. No. 17) . )

18

(Amended Application for

Applicable Law

A state prisoner under a sentence of death who petitions for
habeas relief under
adequate

2254 and is financially unable to obtain

§

representation

or

"investigative,

expert,

or

other

reasonably necessary services," is entitled to the appointment of
counsel
§

and

the

furnishing

of

such

services.

See

18

U.S.C.

3599(a) (2). The proper application of the standard requires this

Court

to

consider

( 1)

the

Crutsinger wants to pursue,

potential
(2)

merit

of

the

claim

that

the likelihood that the services

will generate useful and admissible evidence, and (3) the prospect
that

Crutsinger will

be

able

to

clear

any procedural

hurdles

standing in the way. Ayestas, 138 S. Ct. at 1093. Crutsinger is not
expected to prove that he will be able to win relief; the inquiry
turns on the likely utility of the services requested and there is
no guarantee that an applicant will have enough money to turn over
every stone. Id.
In addressing the likelihood that the requested services would
generate useful and admissible evidence in pursuit of a claim with
potential merit,

the Court is necessarily mindful of the Supreme

Court law governing IATC claims.
expert

witnesses

is

the

Specifically,

paradigmatic

example

the selection of
of

the

type

of

strategic choice that, when made after a thorough investigation o f
the law and facts,

is virtually unchallengeable.

See Hinton v.

Alabama, 571 U.S. 263, 275 (2014). Also, counsel is not required to

19

investigate every conceivable line of mitigating evidence no matter
how

unlikely

the

effort

would

be

to

assist

the

sentencing. Wiggins v. Smith, 539 U.S. 510, 533

defendant

at

(2003) .

Discussion

Because Crutsinger has not shown the potential merit of the
claim he wants to pursue nor the likelihood that the services would
generate useful and admissible evidence, his application must be
denied.

In

a

nutshell,

Crutsinger's

position

is

that

trial

counsel's investigation was too short, and Ms. Knox would do some
more investigating to see what might have been missed, if anything.
Crucially,

Crutsinger's

application

does

not

acknowledge

the

investigation and mental-health evaluations that were performed for
trial.

His conclusion that trial counsel failed to explore his

alcoholism,

his

"personality change"

after a

single drink,

his

history of domestic violence and abuse, and his repeated losses of
significant friends and relatives,
Application for Funds,
these

issues

testimony,
this,

is

in

p.
Dr.

11

is completely false.

(Dkt.

No.

Goodness's

as discussed in Section I.

17) .)

report

(Amended

Information about
and

in

the

trial

In failing to acknowledge

the ex-parte application leaves the false impression that

counsel never inquired into these issues. 5

5

This Court denied Crutsinger' s ex-parte request for a mentalhealth expert for similar reasons . Although Crutsinger addressed the
denial of the expert in his Rule 60(b) (6) Motion, it is not before this
Court on remand. See Rule 60(b)Motion, p. 13 n.ll; Memorandum Op . And
Order Transferring Rule 60(b) Motion (Dkt. No. 98).

20

Additional Arguments in Rule 60{b) Motion

In his Rule 60{b) (6) Motion, filed in May of 2018, Crutsinger
acknowledged some of the

information in Dr.

Goodness's report,

which, by that point, had already been discussed in this Court's
memorandum opinion denying habeas relief. But even the post-Ayestas
Rule 60(b) Motion does no more than identify so-called "red flags"
in

Dr.

Goodness's

report

involving

matters

that

were

clearly

investigated by trial counsel and/or presented at trial.

(Rule

60(b) Motion, p. 6-7 (Dkt. No. 90) .) Crutsinger gives short shrift
to the defense evidence at punishment and suggests that reasonable
counsel would have presented a
already stated,

lO(Dkt.

No .

But,

as

trial counsel hired two experts whose opinions

would not have helped.
usefulness of

mental-health defense.

further

26)),

and

Dr.

Goodness also cautioned against the

testing
the

{Petition,

Exhibit

jury heard little of

C,

.pdf page

the

extensive

damaging information in the mitigation report precisely because
counsel did not rely on a mental-health defense. Other than the
allegedly

insufficient

timing of

the

investigation,

which was

carefully parsed in this Court's order denying reflief and refuted
by

Knox's

own

declaration,

potential evidence exists

Crutsinger

has

not

alleged

that

that could show counsel unreasonably

relied on the opinions of the experts.
369927, at *7.

21

See Crutsinger,

2012 WL

Additional Arguments in Reply to
Response to Rule 60(b) Motion
In Crutsinger's 2018 Reply to the Response to his Rule 60(b)
Motion, he attempts to identify specific, potential deficiencies in
Dr. Goodness's report. See Reply to Director's Response to Motion
for Relief from Judgment Pursuant to Fed. R. Civ . Proc. 60(b) (6),
p.

14-24

(Dkt.

No.

reflect reality
Goodness

96).

Even

if

these

(which is not the case),

should have

done

"more"

is

allegations

accurately

the assertion that Dr.

patently not

the

same as

showing that the requested services would likely generate useful,
admissible evidence in pursuit of a claim with potential merit.
Every counsel, in every case, can do "more."
Crutsinger initially complains that Dr.
conducted

an

evaluation

without

the

Mills

benefit

"apparently"

of

documented

historical information and an adequate psycho-social history. This
assumption is supported by vague references to when counsel hired
Dr. Mills and Dr. Goodness and demonstrates nothing about what Dr.
Mills knew when he evaluated Crutsinger. Moreover,
evaluated Crutsinger as well,

Dr. Goodness

and she conducted her own psycho-

social history evaluation .
He next points out that Dr. Goodness's team only interviewed
six people . But he does not state that these were the only people
interviewed by the defense. Crutsinger possesses the files and work
product of his two trial attorneys and a fact investigator and
could presumably make such an allegation if it were true. In fact,
22

it cannot be true, because trial counsel called eight witnesses to
testify at punishment who were not interviewed by Dr. Goodness.
Obviously, she was not the only investigator for sentencing issues.
Crutsinger relatedly asserts that the records collection "done
by Goodness was paultry,n noting particularly that there was "no
evidence of an attempt to collectn elementa ry-school records and
Texas Department of Criminal Justice records.
p.

22

(Dkt. No.

96) .) Again,

(Reply to Response,

the fact that Dr. Goodness did not

collect the records does not mean they were not collected.

The

school records - including a cumulative record from elementary school
with teacher comments- were admitted into evidence.

(DX 10.) Dr.

Goodness lists "Department of Criminal Justice recordsn as well as
jail records on her list of Case Material Received .
Exhibit C, Appendix A,

(Petition,

.pdf page 19 (Dkt. No. 26) .)

Crutsinger complains Dr . Goodness's report lists "no records
or documentation reflecting any attempt to gather birth and childhood medical records,n but he does not allege there are potentially
any to be found.
there

are

not .

On the contrary,
Crutsinger's

the existing record suggests

mother

said

his

birth

was

uncomplicated, and Dr. Goodness concluded that Crutsinger enjoyed
a "lifelong lack of consequencesn for his behavior until adulthood.
(Petition, Exhibit C, .pdf p. 5, 12-13 (Dkt. No. 26) .) Dr. Goodness
also administered Birth History and Childhood Social History selfreport surveys.

(Id. at 3, 18, 22.) Crutsinger does not allege the

23

surveys

demonstrated

the

potential

existence

of

unexplored

evidence.
Crutsinger asserts
effort had been made
interacted with Mr.

that

there

is

"no

indication that

any

to locate and interview officers who had

Crutsinger in the criminal justice system."

(Reply to Response, p . 22 (Dkt. No. 96) .) Again, this does not mean
officers were not contacted. As discussed in Section I,
called

the

bailiff

and

two

deputy

sheriffs

to

counsel

testify

about

Crutsinger's behavior while incarcerated. (31 RR 154; 32 RR 2 , 10 . )
Crutsinger argues in the reply to response that trial counsel
unreasonably failed to hire an expert in addiction and pursue a
defense that would help the jury understand the link between the
criminal

conduct,

"his

history

of

trauma,"

and

Crutsinger's

alcoholism . (Reply to Response, p. 23 (Dkt. No . 96) .) Dr. Goodness
lS

a forensic psychologist whose qualifications to advise counsel

on this subject have not been challenged. She diagnosed Crutsinger
with

(among other things)

alcohol dependence,

in institutional

remission, and believed he likely had a biological predisposition
to alcoholism and poorer brain functioning as a result. But she,
like the scientific articles that Crutsinger filed in support of
his petition,

asserted there is no definitive neuropsychological

pattern exhibited by individuals who have damaged their brains due
to alcohol use, and that "consideration should be given to exactly
how useful further clarification" from additional testing would be,

24

given the circumstances.
No.

2 6) . )

Thus,

(Petition, Exhibit c,

the trial

.pdf page 10 (Dkt .

team did not overlook the defensive

strategy Crutsinger now proposes.
In short,
response

to

these arguments for funding in the reply to the

the

Rule

60 (b)

Motion must

be

rejected.

They are

artfully phrased facial challenges to Dr. Goodness's report that
ignore material, conflicting information in the record showing what
the defense team obviously did as a whole.
Conclusion

Lest Crustinger complain that, in discussing the trial record,
the Court is deciding in advance that the claim has no merit in
order to deny the requested funds, this is not the case. This Court
is not obligated to turn a blind eye when the record contradicts
assertions made by a party,
Moreover,

especially in ex - parte proceedings .

the Court has viewed the application for funds as it

might potentially apply to any type of Wiggins claim and not simply
the one that has already been denied on the merits.
Trial counsel's investigation touched on all of the issues
that Crutsinger says were overlooked. It is incumbent on Crutsinger
to explicitly allege what potential evidence remains to be found .
Even if

the Court were to accept the

facial

challenges to Dr.

Goodness's report, which it does not, the alleged deficiencies in
document

collection

and

witness

autho rizing the $7,500 requested .

25

development

do

not

justify

Crutsinger chose not to update his application in supplemental
briefing filed after remand . See Supplemental Brief (Dkt. No. 111).
Thus,

eleven years after his initial request, Crutsinger has not

shown the potential merit of a claim he wants to pursue; rather, he
seeks funds to go in search of a claim. He also has not shown the
likelihood that the services would generate useful and admissible
evidence; he instead proposes to re - do the investigation.
Crutsinger's application for funding is DENIED .
Certificat e of Appealability

The Court denies a certificate of appealability. See 28 U.S.C.
§

2253 (c).

Crutsinger's

arguments

are

based

on

(1)

premise that this Court wrongly denied funds in 2008,

the

false

and (2)

a

false and misleading representation of the record. Cr utsinger has
not demonstrated that reasonable jurists would (1) find the Court ' s
assessment of the constitu t ional claims debatab l e or wrong, or (2)
find it debatable whether the Court was correct in its procedural
ruling. Slack v. McDaniel, 529 U. S. 473, 484

(2000).

SIGNED on this the 8th day of August, 2019.

UNITED STATES DISTRICT JUDGE

26