Segundo v. Davis, Director TDCJ-CID
Filing
47
Memorandum Opinion and Order Denying Reconsideration re: 45 MOTION For 28 U.S.C. 3599(f) Funding; Segundos Motion for Funding for Investigation of Constitutional Claims in light of the Supreme Courts Recent Decision in Hall v. Florida (doc. 45) is DENIED. Segundos request for an interlocutory appeal is DENIED. (Ordered by Judge Terry R Means on 6/17/2015) (mem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JUAN RAMON MEZA SEGUNDO,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:10-CV-970-Y
(Death Penalty Case)
MEMORANDUM OPINION AND ORDER DENYING RECONSIDERATION
On February 25, 2015, Petitioner filed a motion to reconsider
this Court’s denial of his post-petition motion for appointment and
funding of a mitigation investigator in light of Hall v. Florida,
134 S. Ct. 1986 (2014) (doc. 45). Respondent has filed his response
in opposition (doc. 46).
Because the current motion repeats the
defect in the prior motion to reconsider, it will be denied.
I.
After his petition for habeas relief was filed in this Court
and after the limitations period under 28 U.S.C.A. § 2244(d) had
expired, Petitioner filed a motion to fund a mitigation investigation
to show that his trial and state habeas counsel were ineffective for
failing to provide information to his experts needed to make a proper
determination of his intellectual disability under Atkins v. Virginia,
536 U.S. 304 (2002). (Doc. 18, at 1.) After that motion was denied,
Segundo moved for reconsideration on the basis that subsequent Supreme
Court authority reversed the Fifth Circuit precedent relied upon in
denying the first motion for funding.
(Doc. 38 at 3-5.)
This Court denied Segundo’s motion to reconsider the denial of
funding because he had not shown that the services were reasonably
necessary for his representation under 18 U.S.C. § 3599(f), much less
that the amount of funding requested in excess of the $7,500 limit
was necessary to provide fair compensation for services of an unusual
character or duration under § 3599(g)(2).
2-9.)
(Order, ECF No. 44, at
In particular, Segundo had not shown that any of his prior
experts had requested the information or that the information would
have made a difference to the opinion of any such expert.
(Order
at 3-8.) Segundo’s second motion to reconsider suffers from the same
defect.
II.
As observed in this Court’s order denying reconsideration of
funding (doc. 44), a habeas petitioner is entitled to funding if he
makes a showing of substantial need for expert or investigative
services, and the district court abuses its discretion in denying
funding when such a need is shown.
(Order at 2-3 (citing Powers v.
Epps, 2009 WL 901896, at *2 (S.D. Miss. Mar. 31, 2009) and Riley,
362 F.3d at 307.
A substantial need is not shown (a) when a
petitioner fails to demonstrate that his funding request would support
a viable constitutional claim that is not procedurally barred, (b)
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when the assistance sought would only support a meritless claim, or
(c) when the assistance sought would only supplement prior evidence.
(Order at 3 (citing Smith v. Dretke, 422 F.3d 269, 288 (5th Cir.
2005).)
To make a viable claim of the deprivation of the effective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
687–90 (1984), for failing to provide an expert with information,
the petitioner must show that the expert requested the information
and that the information would have made a difference to the expert’s
opinion. (Order at 3-4 (citing Bloom v. Calderon, 132 F.3d 1267 (9th
Cir.1997), Roberts v. Dretke, 356 F.3d 632, 640 (5th Cir. 2004),
Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995), Fairbank
v. Ayers, 650 F.3d 1243, 1252 (9th Cir. 2011), and Jennings v.
Stephens, 537 F. App’x 326, 334 (5th Cir. 2013); Roberts v.
Singletary, 794 F. Supp. 1106, 1131-32 (S.D. Fla. 1992).)
Merely
presenting a “disagreement by other experts as to the conclusions
does not demonstrate a violation of Strickland.” (Order at 4 (quoting
Fairbank v. Ayers, 650 F.3d 1243, 1252 (9th Cir. 2011).)
III.
At trial and in the postconviction habeas-corpus proceedings,
Segundo’s attorneys obtained the assistance of mental-health experts
to evaluate whether he was intellectually disabled and, thus, exempt
from execution under Atkins.
The State also obtained expert
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assistance on the question. All of the experts that evaluated Segundo
at the state-court level determined that he was not intellectually
disabled under Atkins.
In his prior motion for reconsideration, Segundo asserted the
opinion of a new expert that criticized all the prior experts for
failing to adequately investigate and evaluate Segundo’s intellectual
disability, particularly regarding adaptive deficits.1 (Doc. 38 at
7-11; Decl. of Stephen Greenspan, Ph.D.) This Court concluded that
a mere disagreement among experts was insufficient to show that his
counsel was ineffective under the standards of Strickland. Instead,
Segundo must show that at least one of his prior experts requested
the sought information from Segundo’s prior counsel, and that the
information would have altered the opinion of at least one of those
prior experts in Segundo’s favor.
Because Segundo’s motion failed
to show how this standard could be met, it would support nothing more
than a meritless claim that was procedurally barred.
Segundo’s current funding motion also does not show that any
of his prior experts requested the information now asserted to be
essential or that such additional information would have changed any
opinions of his prior experts. The nature of expert assistance would
not be served by imposing on counsel a duty to independently know
what the expert needs.
1
As noted in this Court’s prior order, Segundo’s current expert directs his
criticism to the conduct of the prior experts and not to that of Segundo’s prior
attorneys. (Order at 6-7.)
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An integral part of an expert’s specialized skill at
analyzing information is an understanding of what
information is relevant to reaching a conclusion. Experts
are valuable to an attorney’s investigation, then, not only
because they have special abilities to process the
information gathered by the attorney, but because they also
are able to guide the attorney’s efforts toward collecting
relevant evidence.
To require an attorney, without
interdisciplinary guidance, to provide a psychiatric expert
with all information necessary to reach a mental health
diagnosis demands that an attorney already be possessed
of the skill and knowledge of the expert.
Hendricks, 70 F.3d at 1038-39.
Segundo has provided no indication that his prior counsel did
anything but reasonably rely upon expert opinions regarding what
information was needed, nor has he shown that any additional
information would have made any difference to the prior experts.
As was noted by the United States Court of Appeals for the Eleventh
Circuit,
There is no indication that the experts felt incapable
of basing their conclusions on the information they
obtained through their own testing and examinations. Nor
is there any reason that, after receiving the experts’
reports, counsel was obligated to track down every record
that might possibly relate to [the prisoner’s] mental
health and could affect a diagnosis. . . .
Finally, it is unclear that, even had these materials
been provided to experts, their evaluations of [the
prisoner] would have differed.
Card v. Dugger, 911 F.2d 1494, 1512 (11th Cir. 1990); see also
Roberts, 794 F. Supp. at 1131-32 (noting lack of evidence that the
additional information would have changed the expert’s opinions, or
that the experts felt incapable of basing their conclusions on the
information they had obtained).
5
Rather than addressing the basis for this Court’s denial of his
prior motion, Segundo asserts that the Supreme Court’s opinion in
Hall v. Florida now supports his request.
(Motion at 2-3, 6-33.)
That opinion, however, does not address the standards for proving
ineffective assistance of counsel, and does not affect the way Atkins
claims are resolved in Texas.
In Hall the Supreme Court found that a Florida statute violated
the Eighth Amendment because it prohibited inquiry into the other
two elements of intellectual disability under Atkins if the prisoner’s
IQ was above 70. As recognized by the United States Court of Appeals
for the Fifth Circuit, Texas law contained no such prohibition. “Hall
does not implicate Texas.
Although the [Supreme] Court listed the
states that could be affected by its ruling, the word ‘Texas’ nowhere
appears in the opinion, and the reason is obvious: Texas has never
adopted the bright-line cutoff at issue in Hall.” Mays v. Stephens,
757 F.3d 211, 218 (5th Cir. 2014) cert. denied, 135 S. Ct. 951 (2015).
Therefore, whatever change in the law resulted from Hall, it could
not support a different ruling on Segundo’s funding motion.
IV.
Because Segundo’s current motion has the same defect noted by
this Court in denying his prior motion to reconsider funding, the
current motion is also denied. Further, because the Court is in the
process of issuing its final opinion and judgment denying relief
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concurrently with this order, Segundo’s request for an interlocutory
appeal is moot.
Segundo’s “Motion for Funding for Investigation of Constitutional
Claims in light of the Supreme Court’s Recent Decision in Hall v.
Florida” (doc. 45) is DENIED. Segundo’s request for an interlocutory
appeal is DENIED.
SIGNED June 17, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/rs
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