Mamou v. Stephens

Filing 21

ORDER entered DENYING 18 MOTION Application For Authorization Of Funds For Expert And Investigative Assistance.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES MAMOU, JR.,
Petitioner,
VS.
WILLIAM STEPHENS,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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CIVIL NO. H-14-403

ORDER
In 1999, Charles Mamou, Jr. was convicted of capital murder and sentenced to death.
Mamou seeks federal habeas corpus relief after an unsuccessful appeal and collateral attack in the
state courts.

Mamou has filed an Application for Authorization of Funds for Expert and

Investigative Assistance. He asks for $29,020 to aid in the preparation of a federal habeas petition.
(Docket Entry No. 18). The money is to retain the services of an investigator, a ballistics and
firearms expert, a mitigation investigator, a future-dangerousness expert, and a legal expert. The
respondent, William Stephens, opposes Mamou’s motion. (Docket Entry No. 19). Based on the
pleadings, the motion and response, the record, and the applicable law, and for the reasons set out
below, the court denies Mamou’s motion for funds.
I.

The Applicable Legal Standards
Federal law entitles indigent capital petitioners to the appointment of counsel “in any post

conviction proceeding under [28 U.S.C. §] 2254.” 18 U.S.C. § 3599(a)(2); see also Martel v. Clair,
565 U.S. ___, 132 S. Ct. 1276, 1285 (2012). The Supreme Court has held that the right to the
appointment of counsel “includes a right to legal assistance in the preparation of a habeas corpus

application.” The right “adheres prior to the filing of a formal, legally sufficient habeas corpus
petition.” McFarland v. Scott, 512 U.S. 849, 855-56 (1994).
The right to funds, however, is not unlimited. “The granting of funds . . . is a discretionary
decision to which [a petitioner] does not have a mandatory right.” Smith v. Dretke, 422 F.3d 269,
289 (5th Cir. 2005). A “court may authorize the defendant’s attorneys to obtain [investigative or
expert] services on behalf of the defendant” only “[u]pon a finding that investigative, expert, or other
services are reasonably necessary for the representation of the defendant[.]” 18 U.S.C.A. § 3599(f)
(emphasis added).1 A petitioner must show “that he ha[s] a substantial need” for investigative or
expert assistance. Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000); see also Riley v. Dretke, 362
F.3d 302, 307 (5th Cir. 2004).
Several factors guide a court’s discretion in reviewing requests for funds to prepare and
litigate a federal habeas petition. First, funds are not reasonably necessary to develop claims for
which federal habeas review is unavailable. This includes claims that are not exhausted; the AntiTerrorism and Effective Death Penalty Act (“AEDPA”) precludes habeas relief on any claim that
an inmate has not presented to the state courts. See 28 U.S.C. § 2254(b). It also includes claims that
an inmate has presented his claims to the state court in a procedurally improper manner, or for
which no state avenue of relief remains available; such claims are procedurally barred from federal
habeas review. See Dretke v. Haley, 541 U.S. 386, 392-93 (2004); Coleman v. Thompson, 501 U.S.
722, 729 (1991). The Fifth Circuit has affirmed the denial of funding when a petitioner has “‘failed
to supplement his funding request with a viable constitutional claim that is not procedurally
barred[.]’” Wilkins v. Stephens, 560 F. App’x 299, 315 (5th Cir. 2014) (quoting Riley, 362 F.3d at

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Mamou argues that the respondent does not have standing to contest an inmate’s request for funding.
The court addressed the respondent’s standing in the prior order on ex parte proceedings, (Docket Entry No. 17 at 3, n.1),
and Mamou does not provide a basis for the court to reconsider its reasoning in the context of a funding request.

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307); see also Brown v. Stephens, ___ F.3d ___, 2014 WL 3893044 (5th Cir. Aug. 8, 2014); Smith
v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005); Turner v. Johnson, 106 F.3d 1178, 1184 n.16 (5th Cir.
1997).
Mamou filed a pro se habeas application months after his initial state habeas application.
State habeas counsel later filed a supplemental application. Both pleadings raised new claims.
Texas statutory law treats any pleading filed outside a strict statutory period as a successive habeas
action. See TEX. CODE CRIM. PRO. art. 11.071 § 5(f). Because Mamou filed two habeas applications
outside the period for amendment, the state courts found that Mamou defaulted consideration of any
new claims. The state-imposed procedural bar limits federal review of those claims. See Martinez
v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 1316 (2012) (stating that federal habeas review is not
available for claims that “a state court declined to hear because the prisoner failed to abide by a state
procedural rule”). The respondent argues that the court should deny funding for the claims raised
by Mamou’s successive habeas applications.
Second, funds are not “reasonably necessary” to develop evidence that was not presented to
the state courts. Once a state court resolves the merits of a petitioner’s arguments, Supreme Court
precedent limits federal review “to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011); see also
Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 780 (2011) (“[S]tate courts are the principal
forum for asserting constitutional challenges to state convictions[.]”).

Because “Pinholster

prohibits a federal court from using evidence that is introduced for the first time” in federal court,
Blue v. Thaler, 665 F.3d 647, 661 (5th Cir. 2011), additional factual development is irrelevant the
adjudication of exhausted claims.

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Third, a federal court must look to the substance of a petitioner’s proposed investigation to
decide if it will support a potentially viable claim. Courts should not allocate funds that would
“‘only support a meritless claim’” or “‘would only supplement prior evidence.’” Woodward v. Epps,
580 F.3d 318, 334 (5th Cir. 2009) (quoting Smith, 422 F.3d at 288).
Finally, federal law establishes a statutory cap on the funds a district court may allocate. See
18 U.S.C. § 3599(g)(2) (limiting the grant of funds to $7,5000 without approval by the chief judge
of the circuit).

Mamou requests $29,020, an amount nearly four times over the statutory

presumptive maximum. To justify this amount, Mamou must show that the services he requests are
of “unusual character or duration.” 18 U.S.C. § 3599(g)(2).
Mamou’s requests for funds are analyzed under these considerations.
II.

Analysis
A.

Funds for an Investigator to Develop an Actual Innocence Claim

Mamou wants funds to retain an investigator to prove that he is actually innocent of capital
murder. The jury convicted Mamou of killing seventeen-year-old Mary Carmouche during a
kidnaping. Witnesses at trial testified that Mamou and a friend intended to steal cocaine from a
group of men during a planned narcotics transaction. When the drug deal fell apart, Mamou began
firing his gun. He killed one man, shot others, stole a car, and kidnaped Carmouche. She was not
seen alive again. Witnesses said that they later helped Mamou search the stolen car for drugs and
wipe it down to remove fingerprints. Mamou told those witnesses that he had sexually assaulted
Carmouche and then killed her. While some ballistics evidence tied the bullets used to kill
Carmouche to those Mamou fired, the strongest trial testimony came from those involved in the
narcotics transaction and in helping Mamou wipe down the car. Mamou bases his actual innocence

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argument on the fact that he was the only one the State charged with a crime resulting from the
events leading up to Carmouche’s murder.
On federal review, a criminal defendant’s claim of actual innocence arises in two distinct
contexts. The first context is not viable. It is a free-standing claim that the defendant is, as a matter
of fact, innocent of the charged offense, see Herrera v. Collins, 506 U.S. 390, 404 (1993). Mamou
disclaims any intent to raise such a claim. The second context is as a gateway to collateral review
of a forfeited constitutional claim or to overcome a procedural default under the standard outlined
in Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has “recognized a narrow exception
to the [procedural bar doctrine] where a constitutional violation has ‘probably resulted’ in the
conviction of one who is ‘actually innocent’ of the substantive offense.” Haley, 541 U.S. at 393.
Prisoners “asserting innocence as a gateway to defaulted claims must establish that, in light of new
evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S.
at 327). “Examples of new, reliable evidence that may establish factual innocence include
exculpatory scientific evidence, credible declarations of guilt by another, trustworthy eyewitness
accounts, and certain physical evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999).
Mamou claims to be actually innocent because he believes that the prosecution did not
disclose deals with the witnesses whose testimony linked him to the victim’s murder. Mamou
argues that the witnesses involved in the drug deal and the subsequent events “[a]ll gave self-serving
testimony that implicated Mr. Mamou in the drug deal, yet they were also involved.” (Docket Entry
No. 18 at 13). Mamou asserts that he “has reason to believe that these witnesses were all given
inducements and deals by the State to testify as they did and that these inducements and deals were
concealed from the defense[.]” (Docket Entry No. 18 at 13).
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At trial, neither party asked the challenged witnesses whether they testified under an
agreement with the State. Mamou did not develop an actual-innocence argument in state court. In
a related claim under Brady v. Maryland, 373 U.S. 83 (1963), Mamou alleged in his successive state
habeas application that the State had failed to disclose plea agreements with witnesses. Mamou,
however, did not provide evidence that any such agreements existed. Instead, Mamou summarily
argued that “it is highly unlikely given the nature and seriousness of the offense that these men
would have voluntarily implicated themselves in the entire transaction up to and including the
murder Mary Carmouche absent some sort of agreement regarding the future criminal liability.”
State Habeas Record at 228. The Texas Court of Criminal Appeals found that Mamou’s Brady
claim was procedurally barred.
Rather than focus on a Brady claim, Mamou now frames his allegations as an actual
innocence argument. He provides few details. Instead, he alleges that “[i]t is entirely unreasonable
to believe that these witnesses, who were all engaged in serious criminal activities, testified for the
State and implicated themselves in serious crimes, including drug dealing and/or murder, without
any such inducements for them to do so.” (Docket Entry No. 18 at 13-14). Mamou is speculating
that agreements actually existed. Such speculation is insufficient under clear judicial precedent.
See Bell v. Watkins, 692 F.2d 999, 1010 (5th Cir. 1982) (stating that, even when a court may
“understand [a defendant’s] suspicions” that the prosecution entered into “a secret deal with
witnesses,” he “must rely on more than mere inference drawn from the circumstances of the trial in
order to make out his claim” that the prosecution knowingly adduced false testimony).
Mamou can be innocent only if witnesses lied about him kidnaping Carmouche and the
incriminating statements he made later, but he offers no details about what testimony the witnesses
allegedly fabricated. Mamou’s proposed actual innocence argument presupposes that the State
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encouraged these witnesses to lie on the witness stand. Mamou has not provided any reasonable
basis to believe that the State made deals requiring the witnesses to commit perjury. Absent some
suggestion that the State hid agreements with witnesses to manufacture testimony, funding is not
reasonably necessary to the fair development of Mamou’s claim.
B.

Funds for An Investigator to Develop Claims for Ineffective Assistance

In his initial state habeas application, Mamou claimed that trial counsel provided ineffective
representation under Strickland v. Washington, 466 U.S. 668 (1984) on several grounds. Mamou
raised additional ineffective assistance claims in his pro se successive habeas application. The state
habeas court denied the merits of the claims included in Mamou’s initial application and found those
in his pro se application to be procedurally barred. Mamou now seeks funds to augment the
Strickland claims he raised in state court.
When a state court has resolved the merits of an inmate’s claims, Pinholster prevents federal
courts from considering facts outside the state-court record. Insofar as Mamou requests funding to
support for the claims he advanced in his initial state habeas application, additional factual
development is not reasonably necessary.
Mamou also seeks investigative funds to develop further the Strickland claims he defaulted
in his successive state habeas applications. Mamou relies on Martinez v. Ryan, ___ U.S. ___, 132
S. Ct. 1309, 1320 (2012) to argue that he can overcome the bar procedurally deficient claims. In
Martinez, the Supreme Court held that ineffective assistance by a state habeas attorney may amount
to cause under some circumstances. See also Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911
(2013) (applying Martinez to cases arising from Texas courts). To meet the cause exception under
Martinez, an inmate must prove that his habeas attorney’s representation fell below the standards
established in Strickland and show that his underlying ineffective-assistance claim “has some
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merit[.]” Martinez, ___ U.S. ___, 132 S. Ct. at 1318; see also Crutsinger v. Stephens, 540 F. App’x
310, 317 (5th Cir. 2013); In re Sepulvado, 707 F.3d 550, 556 n.12 (5th Cir. 2013).
Mamou summarily argues that Martinez should allow this court to reach the merits of his
defaulted claims for ineffective assistance of trial counsel. Mamou does not explain how state
habeas counsel’s representation fell below expected standards. Without additional information
about whether Mamou possesses a viable argument to overcome any procedural bar, there is no basis
to find that the requested funding is reasonably necessary.
Moreover, Mamou has not provided sufficient detail to enable the court to decide that
investigative assistance is reasonably necessary to support a viable and potentially meritorious
ineffective assistance claim. Mamou lists potential ineffective assistance claims, but he provides
few details about what his prior attorneys have done and what more an investigator could or should
do. The pending request asks for funds to retain an investigator who will locate and obtain
documents,2 interview family members and law enforcement witnesses, and interview Mamou on
death row. Mamou does not describe how that proposed investigation will meaningfully augment
his anticipated claims. For example, Mamou asks for funds to “locate and interview relevant guilt
and punishment phase lay witnesses.” (Docket Entry No. 18 at 17). He does not identify any of the
witnesses who need to be interviewed or what he expects the interviews will uncover. Without
indicating a specific need, Mamou has not shown that funding is reasonably necessary for his
ineffective assistance claims.
C.

Funds for a Ballistics Expert

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Mamou links an investigator’s discovery of documents to his requests for expert assistance. Mamou
argues that the documents “will eventually be reviewed by and serve as the basis for the opinions of the expert witnesses
petitioner will rely on to aid in the development of claims to be raised in the petition.” (Docket Entry No. 18 at 15). As
discussed below, however, Mamou has not yet shown that expert assistance is reasonably necessary for development
of his claims. Accordingly, Mamou has not shown that investigative funds are necessary as a preliminary step toward
expert assistance.

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Mamou requests funds to retain an expert to review the ballistic evidence presented at his
trial. In his supplemental habeas application, Mamou argued that the State expert’s testimony was
patently unreliable and therefore inadmissible. Mamou now seeks funds to have a firearms/ballistics
expert review the State expert’s testimony and “render an opinion on the reliability of this testimony
as it relates to the specific facts of Mr. Mamou’s case.” (Docket Entry No. 18 at 19).
The Court of Criminal Appeals found that Mamou forfeited consideration of his argument
about the ballistics evidence by raising it in a successive habeas application. Federal law does not
authorize funds to develop a procedurally deficient habeas claim. See Woodward, 580 F.3d at 334.
D.

Funds for a Mitigation Expert

Mamou asks this court to fund an investigation into potential mitigating evidence that was
not presented at trial. He argues that “[t]he punishment phase defense testimony was not extensive.
It does not appear that trial counsel compiled a social history of Mr. Mamou or that any extensive
investigation of his background was ever conducted.” (Docket Entry No. 18 at 20). Mamou
provides no detail about what mitigating evidence his trial attorneys ignored or neglected, or what
additional evidence is likely to affect the outcome. A petitioner is not entitled to funds when he has
“offered little to no evidence that the investigative avenues [habeas] counsel propose[s] to take hold
any significant chance for success.” Wilkins v. Stephens, 560 F. App’x 299, 315 (5th Cir. 2014).
Federal law only guarantees funds for reasonably necessary investigations; federal courts have no
obligation to authorize fishing expeditions.
E.

Funds for an Expert on Future Dangerousness

Mamou seeks funds to retain a psychologist who will evaluate whether he is a future danger
to society. According to Mamou, the “penalty phase testimony focused almost entirely on the issue
of future dangerousness.” (Docket Entry No. 18 at 20). Mamou argues that “it is vital . . . to have
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access to an expert on future dangerousness who can refute and show the limitations of the State’s
case for future dangerousness.” (Docket Entry No. 18 at 20).
Mamou hopes that an evaluation will provide additional support for a claim he raised on state
appellate review. On direct appeal, Mamou exhausted a claim that the State had not shown beyond
a reasonable doubt that he would be a future danger to society under Jackson v. Virginia, 443 U.S.
307 (1979). In Jackson, the Supreme Court noted that the Due Process Clause of the Fourteenth
Amendment guarantees the right to be free from criminal conviction “except upon sufficient proof
– defined as evidence necessary to convince a trier of fact beyond a reasonable doubt as to the
existence of every element of the crime.” Id. at 316. However, a reviewing court examines only
“the record evidence adduced at the trial” in determining whether sufficient evidence existed to
support the jury’s verdict. Id. at 324. Because Jackson itself precludes consideration of new factual
evidence in adjudicating a claim of insufficiency of the evidence, and Mamou has not otherwise
shown that expert assistance is necessary, the requested funds to retain a future-dangerousness
expert are not reasonably necessary.
F.

Funds for a Legal Expert

Finally, Mamou wants funds to retain an attorney “familiar with the trial of Texas capital
murder cases, and common practices in Texas at the time of [his] trial” who could “compar[e] trial
counsel’s performance to those generally prevailing in the community at the time of the trial.”
(Docket Entry No. 18 at 21). As the respondent points out, the determination of whether trial
counsel’s representation complied with constitutional standards is an issue for the courts to decide,
not an attorney, and an attorney affidavit is not relevant. As another court observed:
[I]t would not matter if a petitioner could assemble affidavits from a
dozen attorneys swearing that the strategy used at his trial was
unreasonable. The question is not one to be decided by plebiscite, by
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affidavits, by deposition, or by live testimony. It is a question of law
to be decided by the state courts, by the district court, and by [the
circuit], each in its own turn.
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998); see also Johnson v. Quarterman,
306 F. App’x 116, 129 (5th Cir. 2009). The court finds that the requested funds to retain a legal
expert are not reasonably necessary.
III.

Conclusion
Mamou’s motion for investigative and expert funding is denied.
SIGNED on August 28, 2014, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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