Arthur Brown, Jr. v. William Stephens, Director

Case: 13-70030 Document: 00512727404 Page: 1 Date Filed: 08/08/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-70030 FILED

August 8, 2014

Lyle W. Cayce

ARTHUR BROWN, JR., Clerk

Petitioner – Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent – Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Texas death row inmate Arthur Brown, Jr., has exhausted all state and

federal habeas appeals. He has, however, filed a Texas state petition for

clemency and his execution has been stayed by the Texas courts. He moved

the federal district court to allow funds to hire a mitigation specialist to assist

him in his state clemency proceedings. Although Brown requested $7,500 in

his motion, his mitigation specialist estimated the investigation would cost

$20,000. The district court turned him down. He now appeals the district

court’s denial of his motion. We find no abuse of discretion in denying the

funding and AFFIRM the order of the district court denying Brown’s motion.

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No. 13-70030

I.

Brown was convicted of capital murder for his role in the murders of four

people. We described the crime in our previous opinion as follows:

Rachel Tovar and her husband, Jose, were drug dealers in

Houston, Texas. They supplied marijuana and cocaine to other

drug dealers, including Brown and his associates, who were from

Tuscaloosa, Alabama. On June 19, 1992, Brown traveled from

Tuscaloosa to Houston, accompanied by Marion Dudley, Antonio

Dunson, and Maliek Travis. They arrived at the Houston

residence of Brown’s sister, Grace, early in the morning on June

20.

That evening, six people were bound and shot in the head at

Rachel Tovar’s residence in Houston. Four of them died: Jessica

Quinones, the pregnant common-law wife of Rachel Tovar’s son,

Anthony; Jose Guadalupe Tovar, Rachel Tovar’s husband; Audrey

Brown, one of Rachel Tovar’s neighbors; and Frank Farias, Rachel

Tovar’s son. Rachel Tovar and Alexander Camarillo, also known

as Nicolas Cortez Anzures, survived and testified at Brown’s trial.

Both of them identified Brown and Dudley, whom Tovar knew,

from previous drug deals, by the nicknames of “Squirt” and “Red,”

as the shooters. Three of Brown’s sisters––Serisa Ann Brown,

Grace Brown, and Carolyn Momoh––testified as witnesses for the

State at the guilt-innocence phase. All three of them claimed that

the police and prosecutors had threatened them in order to coerce

their cooperation. Carolyn Momoh was held in contempt and

incarcerated at one point during the trial for invoking the Fifth

Amendment, despite the fact that she had been given immunity.

After she eventually testified, she was convicted of perjury. The

jury convicted Brown of capital murder.

Brown v. Thaler, 684 F.3d 482, 486 (5th Cir. 2012) (footnote omitted).

At the punishment phase, the State presented evidence that Brown had

committed an armed robbery four years earlier, that he had extorted other

prisoners while in jail awaiting trial, and that he had assaulted a deputy at

the jail. Brown’s counsel presented evidence that he had a low IQ, suffered

from learning disabilities, and did not do well in special education classes.

They also presented the testimony of a law professor that prisoners become

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less violent as they get older. Trial counsel’s cross-examination of Brown’s

sister, Serisa Ann Brown, during the guilt-innocence phase of the trial also

resulted in the presentation of some mitigating evidence. She testified that

Brown had 32 brothers and sisters, that Brown’s mother was present in the

courtroom during the trial, that Brown was only 23 years old, that Brown had

three children, and that Brown was close to the mother of his three children.

In the state habeas proceedings, Brown’s counsel obtained $2,500 from

the Texas Court of Criminal Appeals (TCCA) for a mitigation specialist. The

mitigation specialist, Lisa Milstein, traveled to Tuscaloosa, Alabama, where

she interviewed Brown’s parents, his brother, and his three sisters. She

obtained an affidavit from Brown’s mother in which she stated that she drank

alcohol excessively during her pregnancy with Brown. Brown’s state habeas

counsel sought an additional $2,700 for Milstein to complete her investigation.

That request was supported by Milstein’s statement in which she outlined the

evidence she had discovered and described the evidence she wanted to develop

through additional investigation. The state court denied the additional

funding request.

In his state habeas application, Brown claimed that trial counsel

rendered ineffective assistance in the investigation and presentation of

mitigating evidence. As support for his claim, Brown relied on the affidavit of

his mother, in which she described her drinking while she was pregnant with

him, and the affidavit of mitigation specialist Milstein, describing her

investigation into Brown’s background. We described the contents of Milstein’s

affidavit in our previous opinion, as follows:

Milstein stated that Brown’s mother, Joe Mae Brown, . . . told

Milstein that when Brown was three years old, he fell from a swing

and struck his head on a cement porch. Mrs. Brown took him to a

hospital, where the attending physician determined that he had a

concussion. Milstein stated that Mrs. Brown told her that Brown

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had headaches two to three times a week for several months after

the concussion, but they never took him for a follow-up visit with

the doctor. Mrs. Brown also told Milstein that she was married to

Brown’s father when Brown was born, but that they divorced when

he was twelve years old; that during the marriage, Brown’s father

beat her; that Brown was close to his father, and she started

having problems with Brown after the divorce; and that Brown

threatened to commit suicide by jumping out of a window at his

school.

According to Milstein, she did not learn of Brown’s mother’s

history of alcohol abuse while interviewing Mrs. Brown, but

learned of it later from interviews with other family members.

Milstein stated that Brown’s sister, Serisa, told her that Mrs.

Brown often went out drinking at night, leaving the children alone

at home, and returning heavily intoxicated in the early morning.

Sometimes when she returned home she woke the children and

made them pray throughout the rest of the night. As a result, the

children were frequently tired at school. According to Milstein,

Grace Brown, another of Brown’s sisters, stated that Brown was

exposed to his mother’s drinking as a child and was embarrassed

by her appearance in public while drunk. Milstein said that Grace

also told her that after the divorce, their mother’s drinking friends

came around more often.

Milstein stated that when she confronted Mrs. Brown, Mrs.

Brown admitted that she drank on a daily, or near daily, basis;

that she drank heavily throughout her pregnancy with Brown; and

that she obtained homemade bootleg whiskey from one of her

sisters. Milstein believed that Mrs. Brown was likely an alcoholic.

In her handwritten affidavit, Mrs. Brown stated that she drank

while pregnant with Brown, at least every weekend and often

during the week. She estimated that she consumed at least a pint

of bootleg whiskey or brandy. Milstein believed that Mrs. Brown’s

alcohol abuse during her pregnancy with Brown was an important

mitigating fact, because it might have caused organic brain

damage called Fetal Alcohol Syndrome or Fetal Alcohol Effect.

Milstein reported that she learned from her investigation

that Brown had an impoverished upbringing. After his parents’

divorce, he lived with his mother and three other siblings in a

small apartment in a poor area of Tuscaloosa, in a neighborhood

that contained drugs and violence. According to Milstein, Brown’s

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childhood was one marked by deprivation, including lack of food,

clothing, guidance, and a father figure. Brown was devastated by

his parents’ divorce and was left in the hands of a drunken and

abusive mother.

Milstein stated that Brown had a stable relationship in

Tuscaloosa with his common-law wife and that he worked at

legitimate jobs to provide for her and their three children. Milstein

stated that Brown’s sister Grace told her that Brown had an

intense work ethic and had on occasion worked two jobs at once to

support his family. Milstein reported that each of Brown’s sisters

told her that Brown’s trial counsel did not ask them any questions

regarding mitigating evidence.

684 F.3d at 493–94.

The TCCA denied Brown’s state habeas application. Ex parte Brown,

No. WR-26178-02, 2008 WL 2487788 (Tex. Crim. App. June 18, 2008)

(unpublished).

In his federal habeas petition, Brown claimed that the state courts

violated his constitutional rights by failing to provide additional funds and that

trial counsel rendered ineffective assistance by not putting the contents of the

two affidavits into evidence at trial. The district court held that the state

habeas court’s decision to deny the ineffective assistance claim was not

contrary to, or an unreasonable application of, federal law. Brown v. Thaler,

No. H-09-74, 2011 WL 798391 (S.D. Tex. Feb. 28, 2011) (unpublished). The

district court stated that there was not a reasonable probability that the jury

would have made a different assessment of Brown’s moral culpability had his

trial counsel presented the evidence that Brown claimed should have been

presented, as described in the affidavits of Milstein and his mother. It denied

habeas relief and denied a certificate of appealability (COA).

Brown requested a COA from this court for his claim that his trial

counsel rendered ineffective assistance by failing to investigate available

mitigating evidence concerning his difficult childhood and troubled

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background, including his mother’s alcohol abuse, by failing to retain mental

health experts to evaluate his low intelligence, and by failing to explore

whether he suffers from Fetal Alcohol Spectrum Disorder. This court denied

Brown’s request for a COA. 684 F.3d 482. The Supreme Court denied

certiorari. Brown v. Thaler, 133 S. Ct. 1244 (2013).

After Brown’s execution was scheduled, he filed in the district court an

ex parte motion for authorization of funding and for appointment of a

mitigation investigator to assist in clemency proceedings. He asked the district

court to appoint Nicole VanToorn, a mitigation specialist, at an estimated cost

of $20,000, to complete the investigation that Milstein started in the state

habeas proceedings. He sought to develop a complete life and social history,

including evidence of poverty, family violence, exposure to drugs and alcohol

during childhood, and brain impairments caused by his mother’s excessive

drinking during her pregnancy with him. The district court denied Brown’s

request for funds, holding that he had not shown that the proposed

investigation is reasonably necessary for the purposes of clemency.

Brown filed a clemency petition on October 7, 2013. The State withdrew

the execution date in order to allow Brown to seek retesting of certain trial

evidence, and Brown withdrew the clemency petition. This appeal is not moot,

however, because of the likelihood that the State will reschedule Brown’s

execution.

II.

Brown argues that the district court abused its discretion in denying

funds for a mitigation specialist. He contends that the court mischaracterized

his proposed investigation as a request to obtain affidavits from the witnesses

Milstein had previously identified and interviewed. Instead, he maintains that

his proposed investigation was designed to follow up on the leads that Milstein

had uncovered and to obtain first-hand witness accounts concerning his

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upbringing and family history. He asserts that Milstein’s affidavit indicates

that there are numerous red flags that more important mitigating evidence

exists and should be developed and presented in clemency proceedings, and

that it is unfair to limit him to the evidence that Milstein uncovered in 1998,

because her investigation was incomplete and does not accurately and fully

portray his upbringing and family history. Brown contends further that the

district court substituted its judgment concerning Brown’s entitlement to

clemency for that of the Parole Board and Governor. He points out that the

Board may consider defects in the justice system, as well as questions of mercy

and moral culpability, untethered by the legal standards applicable in prior

judicial proceedings.

We review the denial of funding for investigative or expert assistance for

an abuse of discretion. Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009);

Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). In Harbison v. Bell, 556

U.S. 180, 183 (2009), the Supreme Court held that 18 U.S.C. § 3599 authorizes

federally funded counsel appointed to represent an indigent state prisoner in

federal habeas proceedings to represent him in subsequent state clemency

proceedings.

Section 3599 provides further that

Upon a finding that investigative, expert, or other services are

reasonably necessary for the representation of the defendant,

whether in connection with issues relating to guilt or the sentence,

the court may authorize the defendant’s attorneys to obtain such

services on behalf of the defendant and, if so authorized, shall

order the payment of fees and expenses therefor under subsection

(g).

18 U.S.C. § 3599(f) (emphasis added). Subsection (g) provides that

Fees and expenses paid for investigative, expert, and other

reasonably necessary services authorized under subsection (f)

shall not exceed $7,500 in any case, unless payment in excess of

that limit is certified by the court . . . as necessary to provide fair

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compensation for services of an unusual character or duration, and

the amount of the excess payment is approved by the chief judge

of the circuit.

18 U.S.C. § 3599(g)(2).

In addressing requests for funding for expert or investigative assistance

in federal habeas proceedings, this court has interpreted “reasonably

necessary” to mean that the petitioner must show that he has “a substantial

need” for the requested assistance. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.

2004). In the federal habeas context, we have held that a district court may

deny an inmate’s request for funds “when a petitioner has (a) failed to

supplement his funding request with a viable constitutional claim that is not

procedurally barred, or (b) when the sought-after assistance would only

support a meritless claim, or (c) when the sought after assistance would only

supplement prior evidence.” Smith, 422 F.3d at 288 (citations omitted)

(addressing request for funds to obtain the assistance of an expert psychologist

in federal habeas proceedings).

The district court noted that questions about the procedural adequacy of

a claim have no bearing on the clemency process, but it nevertheless concluded

that an inquiry into the merits of the proposed investigation still applies to

requests for funds to support clemency. Therefore, it held that Brown was

required to show that the proposed investigation would not just supplement

prior evidence or support meritless claims. The district court held that Brown

had not shown that federal funds for a mitigation investigation, especially one

as expensive as the one he proposed, were reasonably necessary for the

purposes of clemency. Although Brown requested only $7,500 in his motion,

his mitigation specialist estimated that the investigation would cost $20,000.

The court pointed out that the estimated cost of the investigation was nearly

three times the statutory limit of $7,500 and that, for funds over that limit,

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Brown must show that the requested assistance is of “unusual character or

duration.” 18 U.S.C. § 3599(g)(2). The court found that Brown had not shown

what mitigating evidence remains undiscovered and that he only sought to

amass more, not fundamentally different, mitigation evidence. The court

stated that, other than interviewing more witnesses, Brown had not shown

what information was missed by Milstein. Further, he did not propose any

mitigation theory that exceeded the contours of the affidavits he presented on

federal habeas review and his request for investigative assistance followed the

same mitigating avenues outlined in Milstein’s and his mother’s affidavits.

The court concluded that it was speculative whether additional investigation

would uncover information different from that contained in Milstein’s report.

The court concluded that federal courts have no obligation to authorize fishing

expeditions and that federal law does not authorize funding for speculative

investigation in the hopes that Brown may turn up something new.

Our court has not addressed a request for funding for investigative

services in the clemency context. In determining whether such services are

“reasonably necessary,” consideration must be given to the nature and purpose

of clemency proceedings. The clemency process takes place only after all

judicial proceedings have been completed. In capital cases, such judicial

proceedings include, at a minimum, trial, direct appeal, state post-conviction

review, and federal habeas review, in all of which proceedings indigent

prisoners are provided with legal representation and investigative and expert

assistance at taxpayer expense. Clemency “proceedings are a matter of grace

entirely distinct from judicial proceedings.” Harbison, 556 U.S. at 192.

“Clemency is deeply rooted in our Anglo-American tradition of law, and is the

historic remedy for preventing miscarriages of justice where judicial process

has been exhausted.” Herrera v. Collins, 506 U.S. 390, 411–12 (1993) (footnote

omitted). Thus, when a petitioner requests funds for investigative services for

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the purpose of clemency proceedings, the petitioner must show that the

requested services are reasonably necessary to provide the Governor and

Board of Pardons and Paroles the information they need in order to determine

whether to exercise their discretion to extend grace to the petitioner in order

to prevent a miscarriage of justice. Accordingly, it was appropriate for the

district court to consider the merits of the proposed investigation and to

consider whether the proposed investigation would only supplement prior

evidence that had already been considered in the judicial proceedings and was

thus available to the Board and the Governor.

We hold that the district court did not abuse its discretion in denying

Brown’s request for funds. Brown sought funds for the purpose of completing

the investigation commenced by Milstein in the state habeas proceedings, to

develop evidence of poverty, family violence, exposure to drugs and alcohol

during childhood, and brain impairments caused by his mother’s excessive

consumption of alcohol during her pregnancy. Although Milstein estimated

that she could complete her investigation in 54 hours, Brown requested

authorization for nearly four times that number of hours for the proposed

investigation by VanToorn. As the district court observed, there can be little

doubt but that the facts of Brown’s crime will weigh heavily in his clemency

proceedings. Those facts are brutal: Brown and his accomplices bound and

shot six people in the head, execution-style. Although two of the victims

survived, one of the four who died was a nearly nine-months pregnant

teenager. In his request for funds, Brown offered little beyond speculation that

the proposed additional investigation would uncover some information

different from that Milstein described in her report and affidavit. Brown failed

to demonstrate that the proposed investigation by VanToorn was reasonably

necessary to provide the Board of Pardons and Paroles and the Governor with

material information beyond that already adduced by Milstein. Accordingly,

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the district court did not abuse its discretion by denying funding for such

investigation.

III.

Brown has not demonstrated that the funds he requested for

investigative services are reasonably necessary for clemency proceedings.

Accordingly, the district court did not abuse its discretion by denying the

requested funds. The order of the district court is therefore

AFFIRMED.

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