Crutsinger v. Stephens, Director TDCJ-CID

Filing 75

Memorandum Opinion and Order denying 72 Authorization for DNA Expert. (see order for specifics) (Ordered by Senior Judge Terry R Means on 6/5/2017) (mpw)

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.

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

MEMORANDUM OPINION AND ORDER
DENYING AUTHORIZATION FOR DNA EXPERT
Before the Court is Petitioner Billy Jack Crutsinger’s Opposed
Motion for Services of DNA Expert to Conduct Preliminary Review,
filed under 18 U.S.C. § 3599 on April 27, 2017. [ECF No. 72,
“Motion.”]

The Motion requests funds for an unnamed analyst at

Bode Cellmark to conduct a case review and prepare an affidavit,
which would likely be used by counsel to seek additional funding to
perform DNA testing.
Respondent opposes the Motion because Crutsinger has not made
allegations for which the services could be deemed “reasonably
necessary” under the statute.

Respondent also asserts that the

Court may not have jurisdiction to grant funding for a successive
habeas petition.

[ECF No. 73.]

In his reply, Crutsinger argues

that the Court has jurisdiction under both Supreme Court and
circuit case law and points out that the “substantial needs” test,
often used in this circuit to determine what are “reasonably

necessary” services, is pending Supreme Court review. [ECF No. 74,
“Reply.”]
Neither the motion nor the response address the fact that
there is a Texas statute that sets out a procedure for obtaining
post-conviction DNA testing and provides counsel for that purpose.
This raises the question of whether federal habeas counsel and
federally-funded expert services can and should be used for DNA
testing.

As explained below, the Court answers this question in

the negative and denies the motion for that reason.

In the alter-

native, the Court concludes Crutsinger has not shown a reasonable
necessity for the requested services.
I.

Background

In 2003, a Tarrant County jury convicted Crutsinger of capital
murder and sentenced him to death.

His direct appeal, as well as

state and federal habeas corpus proceedings, are now concluded. See
Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. App.), cert.
denied, 549 U.S. 1098 (2006); Ex parte Crutsinger, No. WR-63,48101, 2007 WL 3277524 (Tex. Crim. App. Nov. 7, 2007) (not designated
for publication); Crutsinger v. Stephens, 576 F. App’x 422 (5th
Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015).
Crutsinger’s crime involved the stabbing deaths of 89-year-old
Pearl Magouirk and her 71-year-old daughter, Patricia Syren, in
their Fort Worth home.

Both victims suffered multiple stab wounds

and had their throats cut.

A broken knife was found in the

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victims’ bathroom, and blood evidence suggested the killer had been
injured when it broke.

Syren’s Cadillac was taken from the home

and later found abandoned at a bar.

A DNA analyst testified at

trial about biological samples taken from the broken knife, the
victims’ clothing, the interior of the abandoned Cadillac, men’s
clothing found in a trash dumpster near the abandoned Cadillac, and
blood stains throughout the victims’ home and garage.

The analyst

associated some samples with either Crutsinger or the victims, but
she also identified “mixture” samples containing DNA associated
with both Crutsinger and one or both victims.
In a letter dated July 8, 2016, the Tarrant County district
attorney (“DA”) advised Crutsinger that his case “may potentially
be implicated” by (1) a change in the DNA-mixture interpretation
protocol and (2) the FBI’s “recent amendment of its population
database” (emphasis in original). (Motion, Ex.

A.)

The letter

stated that the probability statistics could be recalculated using
the FBI’s updated database, but that the DA’s office had to
investigate options for reinterpreting the evidence using the updated protocol.

The letter was sent to Crutsinger’s attorney of

record, Lee B. Kovarsky of Baltimore, Maryland.
On March 17, 2017, the DA sent another letter to Mr. Kovarsky,
advising that the DA’s office had been unable to obtain a reinterpretation
examiner’s

of

the

office

DNA-mixture
is

no

profiles

longer

3

because

proficiency

the

tested

medical

using

the

necessary amplification kits. (Motion, Ex. B.)

The letter further

stated that the DA would move the trial court to set an execution
date because Crutsinger’s conviction is supported by “significant
DNA evidence not impacted by the changed mixture interpretation
protocol,” as well as significant non-DNA evidence.
The instant motion was filed by federal habeas counsel, Lydia
Brandt, who was appointed by the Court in 2008 under 18 U.S.C.
§ 3599(a)(2) to prepare and file Crutsinger’s federal petition for
habeas-corpus relief under 28 U.S.C. § 2254.

The motion requests

$500 to retain Bode Cellmark to review the case and provide
potential

options

interpreted.

for

having

the

DNA-mixture

profiles

re-

Once the preliminary review is conducted, Crutsinger

advises that he may seek additional funding from the Court to
perform the actual testing.

(Motion, p. 1.)

Crutsinger asserts

that this request is relevant to his representation in executive
clemency proceedings and to potential habeas applications that he
may file in state and federal court. (Motion, p. 2.)
II.

Statutory provisions for federal habeas counsel
and related services

A state prisoner under a sentence of death, who petitions for
habeas relief under § 2254 and is financially unable to obtain
adequate

representation

or

“investigative,

expert,

or

other

reasonably necessary services,” is entitled to the appointment of
counsel and the furnishing of such services.

See § 3599(a)(2).

Section 3599(e) further provides that federal counsel so appointed
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“shall represent the defendant throughout every subsequent stage of
available judicial proceedings,” which includes “all available
post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures,” and “in
such competency proceedings and proceedings for executive or other
clemency as may be available to the defendant.”

§ 3599(e).

As for services other than counsel, a district court may
authorize expenditures up to $7,500 for investigative, expert, or
other services that the district court finds to be “reasonably
necessary.”
III.

See

§ 3599(f).

The scope of federal habeas counsel’s representation

There is no dispute that Crutsinger is indigent and that the
requested authorization is well within the statutory limit for
service providers.
beginning

of

The motion indicates that this is only the

Crutsinger’s

funding

requests

for

DNA

testing,

however, and it assumes that federal habeas counsel is currently
acting within the scope of her appointment.

Before the Court

addresses the necessity of the requested services, therefore, the
Court must determine whether federal habeas counsel’s representation under § 3599 includes the DNA investigation and testing that
Crutsinger intends to pursue.
A.

Applicable law

The seminal case on this issue is Harbison v. Bell, 556 U.S.
180 (2009). In Harbison, the Supreme Court addressed whether § 3599

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authorizes federal habeas counsel to represent a state petitioner
in state clemency proceedings.

The Supreme Court answered the

question in the affirmative, based on the organization of § 3599(e)
and its interpretation of the word “subsequent” used in it.
188.

Id. at

The statute provides:
(e) Unless replaced by similarly qualified counsel upon
the attorney's own motion or upon motion of the
defendant, each attorney so appointed shall represent the
defendant throughout every subsequent stage of available
judicial proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court
of the United States, and all available post-conviction
process, together with applications for stays of
execution and other appropriate motions and procedures,
and shall also represent the defendant in such competency
proceedings and proceedings for executive or other
clemency as may be available to the defendant.

§ 3599(e) (emphasis added).
The Supreme Court concluded that when counsel is appointed for
the purpose of pursuing federal habeas relief under § 2254, the
representation

includes

judicial

proceedings

that

transpire

“subsequent” to counsel’s appointment and is not circumscribed by
a division between federal and state proceedings.

Id. at 188.

In rejecting the government’s argument that such a reading of
the statute would require a federal habeas lawyer to represent the
client on retrial or in state habeas proceedings, the Supreme Court
identified two limitations in the coverage of § 3599.

First, the

text of § 3599(a)(2) provides for counsel “only when a state
petitioner is unable to obtain adequate representation.”
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Id. at

189. States are constitutionally required to provide trial counsel
for indigent defendants.

So, for a state prisoner granted a new

trial following § 2254 proceedings, the Supreme Court reasoned that
his state-furnished representation renders him ineligible for
§ 3599 counsel until the commencement of new § 2254 proceedings.
Id.

In fact, the Court determined that Harbison was entitled to

§ 3599 counsel only after noting that Tennessee law did not provide
him with clemency counsel.

Id. at 182.

A second limitation on the scope of federal habeas counsel’s
appointment is the Court’s interpretation of “every subsequent
stage of available judicial proceedings” and “all available postconviction process” as reflecting the ordinary, sequential course
of proceedings.

See id. at 189-90.

The Court observed that the

language of the statute contemplates limited federal funding in
“other appropriate motions and procedures” in state court, by which
district courts have discretion on a case-by-case basis to provide
federal counsel to exhaust a claim in the course of federal habeas
representation.

The Court held, however, that this does not mean

that state habeas proceedings are included in the meaning of
“available post-conviction process.”

Id. at 190 n.7.

“That state

postconviction litigation sometimes follows the initiation of
federal habeas because a petitioner has failed to exhaust does not
change the order of proceedings contemplated by the statute,” which

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is that petitioners must exhaust their claims in state court before
seeking federal habeas relief.
B.

Id. at 190-91.

Discussion

Based on this reading of Harbison, the Court concludes that
the scope of federal habeas counsel’s representation does not
include the sought-after DNA expert authorization.
provides adequate representation for this purpose.

Texas law

Article 64.01

of the Texas Code of Criminal Procedure provides that a convicted
person may submit to the convicting court a motion for forensic DNA
testing of evidence secured in relation to the offense that is the
basis of the challenged conviction.
art. 64.01(a-1), (b).

Tex. Code Crim. Proc. Ann.

The DNA statute continues:

A convicted person is entitled to counsel during a
proceeding under this chapter.
The convicting court
shall appoint counsel for the convicted person if the
person informs the court that the person wishes to submit
a motion under this chapter, the court finds reasonable
grounds for a motion to be filed, and the court
determines that the person is indigent. Counsel must be
appointed not later than the 45th day after the date the
court finds reasonable grounds or the date the court
determines that the person is indigent, whichever is
later. Compensation is provided in the same manner as is
required by . . . [the statute providing for habeas
corpus procedure in death penalty cases].
Art. 64.01(c) (emphasis added).

Crutsinger does not attempt to

show that this statute would not avail him in his efforts to obtain
DNA testing.
In light of the above provision, Crutsinger’s “state-furnished
representation

renders

him

ineligible

8

for

§

3599

counsel.”

Harbison, 556 U.S. at 189.

See Irick v. Bell, 636 F.3d 289, 291

(6th Cir.), cert. denied, 565 U.S. 1036 (2011) (denying request for
federally
proceedings

appointed
and

to

counsel
pursue

to

reopen

state

state

post-conviction

competency-to-be-executed

proceedings where state law provides adequate representation for
that purpose). Not only would the Texas statute provide Crutsinger
with counsel for the purpose of seeking DNA testing, but the
exhibits attached to Crutsinger’s Motion indicate that Crutsinger
already has counsel.

The DA’s first letter about the Texas

Forensic Science Commission’s review shows that Mr. Kovarsky is
Crutsinger’s counsel of record for this matter. (Ex. A (“As the
listed attorney(s) of record, we are notifying you . . .”).)
Additionally, the DNA testing Crutsinger intends to pursue is
not a “subsequent” stage of judicial proceedings in the ordinary
sequential course of death-penalty litigation.

Whether and when

post-conviction DNA testing is carried out depends on the facts of
a given case and the timing of advances in DNA science.

There is

no properly understood time during the life of the case do it.

The

DNA testing is therefore not included in § 3599's description of
judicial proceedings “subsequent” to federal counsel’s appointment.
See Gary v. Warden, Georgia Diagnostic Prison, 686 F.3d 1261, 1275
(11th Cir. 2012), cert. denied, 133 S. Ct. 1734 (2013) (denying
funds for DNA expert to assist petitioner in moving the state court

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for DNA testing because DNA testing is not a subsequent proceeding
contemplated by § 3599).
Crutsinger's suggestion that the DNA proceedings fall within
the scope of his clemency representation, which is permitted by
Harbison, is not persuasive. (Reply, p. 1-2.) Crutsinger has not
shown that an execution date is set, which would trigger the
clemency process.

More importantly, this argument ignores the

Texas procedure established for DNA testing in cases just like
this.

The Court declines to interfere with the state process for

reviewing

forensic

evidence

on

that

ground

that,

some

day,

Crutsinger may be in a position to seek clemency from the governor.
The Court also rejects the suggestion that the requested
authorization falls within the scope of counsel's representation in
future habeas-corpus litigation, such as an innocence claim.

Such

proceedings in state court would be in the nature of exhaustion
proceedings that properly precede federal habeas litigation.
Harbison,

556

U.S.

at

189

(“State

‘subsequent' to federal habeas”).

habeas

is

not

a

See
stage

And federal law, unlike Texas

law, does not even recognize actual-innocence claims.

See Herrera

v. Collins, 506 U.S. 390 (1993); cf. State ex rel. Holmes v. Court
of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994) (holding that
state habeas proceeding is an appropriate vehicle in which to
assert factual innocence based on newly discovered evidence).

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It

is more appropriate at this point for Texas courts to address this
matter along with any innocence claims that may result.
Crutsinger’s reliance on Battaglia does not avail him.

In

Battaglia, the Court of Appeals granted Battaglia's motion to
substitute counsel twenty days before his execution date because
previous federal counsel had abandoned Battaglia by not challenging
his competency to be executed. See Battaglia v. Stephens, 824 F.3d
470, 475 (5th Cir. 2016).

But competency proceedings, unlike DNA

proceedings, are specifically enumerated in § 3599(e) as within the
province of federal habeas counsel’s representation. See § 3599(e)
(“each attorney so appointed . . . shall also represent the
defendant in such competency proceedings . . . as may be available
to the defendant.”)

And, unlike the DNA statute, the Texas

competency-to-be-executed statute assumes the presence of defense
counsel but does not specifically provide for the appointment of
counsel. See Tex. Code Crim. Proc. Ann. art. 46.05(i) (noting that
expert reports shall be provided to the attorney representing the
defendant); cf. Tex. Code Crim. Proc. Ann. art. 46B.006 (providing
for

the

appointment

proceedings).

of

counsel

in

competency-to-stand-trial

Thus, Battaglia had been abandoned by previous

counsel and it is not clear from the Texas statute that Battaglia
would have had adequate, state-furnished representation in a state
competency-to-be-executed proceeding.

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Crutsinger, on the other

hand, apparently has Texas counsel (Lee Kovarsky) and, if he does
not, the DNA statute provides for one.
The Court concludes, under Harbison, that § 3599(a)(2) and (e)
do not contemplate the provision of federal counsel in postpetition DNA proceedings.

To the extent Harbison suggests that

this Court has discretion on a case-by-case basis to provide
federal counsel for this purpose, the Court declines to do so
because Texas law provides adequate representation, and Crutsinger
fails to explain why federal habeas counsel should get involved at
this point.

Since the DNA proceedings are outside the scope of

federal habeas counsel’s appointment, counsel cannot obtain funds
pursuant to § 3599(f) for a DNA expert.
IV.

The necessity of the requested services

In the alternative, the Court concludes that Crutsinger has
not made the required showing that the requested services are
reasonably necessary for the representation.
In determining what is reasonably necessary, courts have
generally looked at whether the proposed services can be tied to a
viable constitutional claim.

Woodward v. Epps, 580 F.3d 318, 334

(5th Cir. 2009) (discussing and applying predecessor statute, 21
U.S.C. § 848(q)(9)).

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
12

3497486, *5 (S.D. Ohio Oct. 29, 2009) (denying request made “out of
an abundance of caution” to re-investigate Atkins claim); Patrick
v. Johnson, 48 F. Supp. 2d 645, 647 (N.D. Tex. 1999) (Kaplan,
Magis. J.)(holding that statute was not designed to provide habeas
petitioners with unlimited resources to investigate speculative
claims); DeLong v. Thompson, 790 F. Supp. 594, 617 (E.D. Va. 1991)
(Spencer, J.)(holding that proposed investigation of trial counsel
and trial judge amounted to “fishing expedition”).
Crutsinger does not identify a viable constitutional claim
that the DNA expert would be used to develop.

He states that, at

a minimum, the right to federal habeas counsel would include the
right to develop an innocence claim, “particularly given the
State’s letter ‘regarding the mixture interpretations in this
case.’” (Reply, at 2.)

But Crutsinger is not contending he is

factually innocent.
Instead, he argues that the denial of funding would be
improper because it requires him to demonstrate he would prevail on
a claim, even though he has not had a full opportunity to develop
the facts to make that showing. (Reply, at 3.)

He argues that the

Fifth Circuit’s oft-cited “substantial need” test for denying
funding is improper and pending Supreme Court review. (Reply, at 34.)
To be clear, the Court is not requiring Crutsinger to show a
“substantial need” for the requested DNA services nor is the Court

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requiring him at this point to demonstrate procedural viability of
a claim.

The Court does, however, expect Crutsinger to identify a

constitutional claim and articulate how the requested funds would
be used to develop it.

There was a significant amount of DNA

testimony at trial, as well as other, non-DNA evidence connecting
Crutsinger to the crime.

This evidence is in the state court

record, which he used to litigate his federal habeas petition.
Contrary to his assertion, the absence of a DNA expert does not
prevent Crutsinger from claiming he is factually innocent.

Nor

does it prevent him from articulating how his exclusion from a DNA
sample could demonstrate his actual innocence.

In this regard,

Crutsinger does not even discuss the evidence that would be
subjected to the new protocol or its significance to the case.

As

presented, the motion is simply a request to fund a fishing
expedition, and it should be denied.
The motion [ECF No. 72] is DENIED.
SO ORDERED this 5th day of June, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks

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