# Opposition Brief — Ayestas v. Davis, 137 S. Ct. 1433 (2017) (No. 16-6795) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0764%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2017 ## Text Ber < l FLED | No.166765 [L_fees 2017 In the Supreme Court of the United States CARLO6 MANUEL AYBSTAS, PETITIONER v. Lonuz Davis, Director, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, (INSTITUTIONAL DIVISION) (CaPITAL CASE) ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITBD STATES COURT OF APPEALS FOR THE FiFTH CIRCUIT BRIEF (N OPPORITION KEN PAXTON Scott A. KBLLER Attorney General of Texas Solicitor General Counsel of Record QUESTIONS PRESENTED The Court has held that a federal habeas proceeding should not be stayed to allow a habeas petitioner to exhaust an unexhausted claim when that claim is plainly meritless. Rhines vu Weber, 544 U.8. 269, 277 (2005). The Fifth Cireuit determined that petitioner's new, anexhaveted claims would be procedurally barred by Texas's abuse-of-the-writ statute and, therefore, lacked merit. Consequently, the Fifth Circuit denied a certificate of appeal- abihty regarding petitioner's request for a stay to pursue the claims further. 1. Would reasonable jurists debate whether to grant a Rhines stay when the petitioner has failed to show that his unexhausted claim would avoid being procedurally defaulted under Texas's abuse-of-the-writ statute? Pursuant to 18 U.S.C. § 3698(f), district courts may authorize funding for investigative services in federal habeas cases when the services sought are “reasonably necessary” Lo the representation of the habeas petitioner. The Fifth Circuit determined that funding was not “reasonably necessary” when the claim sought to be investigated would fail on the merits regardless of the outcome of the investigation. 2. Is investigative funding “reasonably neceasary” under § 369X(f) when a court has deter- mined that the underlying ineffective-assistance claim will ultimately fai] on the merits? Questions presented ........... resenetqnanstnenennansanenegenessemmannsnennenenets = Table of authorities n . a ———————— Statement ......0.0000 Smee on “ ~2 I Trial and conviction ....... 2 (Il. State habeas proceedings 4 Ill, Federal habeas proceedings cenbnsininenen - 6 Argument.......c0000: ——— —— 1 Reasonable jurists would not debate whether to grant a Xhines stay to pursue a claim that will be procedarally defaulted. 13 A. The Fifth Circuit's ruling that habeas proceedings should not be stayed to exhaust procedurally barred claims does not implicate a circuit split. — B. Se any Sain aie Gi aaa 6 pee vehicle to addreas the first question presented.. - 18 1, Petitioner’s request to add new claims is a second or successive petition that has not been authorized by the Fifth Circuit. 18 2 Petitioner’s new claims would be barred by AEDPA‘s statate of limitations. — {l. The lower courts properly denied investigative funding after determining that petitioner’s underlying claim would still lack merit. ......... 2) A. ae Pane to investigate claims that will ultimately fail. — 3. Petitioner's funding claim also faces comnnecsonan and SRST CERI ceerrecen renee 27 ©. The Fifth Ctreuit did not err in concluding that petitioner's ineffective-assistance claim lacked METIt...............00..0eerenennenvene 30 21 seeeee TABLE OF CONTENTS TABLE OF AUTHORITIES Page(s) Canes: Aguilar v, Dretke, 428 F.8d 626 (6th Cir. 2005)............. 16 Atkins v. Virginia, 5G US, 804 (BON) 0... ccscccsenennnnens a Ayestas v. Stephana, 563 F. App’x 422 (Sth Cir. 2014) (per curiam) A, 20 Ayeatas v. Thaler, 183 S, Ct, 2764 (2013) .. — Ayestas v. Thaler, 462 F, App’x 474 (6th Cir. 2012) (per CUTIAM).....006 a In ve Baker, 698 F.2d G25 (Vth Cir, 19B2Z) ...cccneececeeevernene 21 Kanse v, Starling, 719 F.2d 241 (7th Cir. 1983)... 21 Brown v. Stephens, 162 F.3d 454 (5th Cir. 2014)....... a | Burris » Parka, 190 F.3d 782 (7th Cir, 1997).. = 26-27 Burton u Stewart, 649 U.S. 147 (2007) (per curiam).......... ine 18-19 Butler v. Stephens, 625 F. App’x 641 (6th Cir, 2015) (per curiam). owl Cannon v. Gibson, 259 F.3d 1268 (10th Cir, 2001) .....ccsccceererenrsnnneernennees _ — Cooper v. Calderon, 256 F.Bd 1104 (Oth Cir, 2001)... ccccrerveeoevernnem meme — Crutsinger v. Stephens, 186 S. Ct. 1401 (2016)............. singe anaes ‘ 24 iii Feaidberg v. Quechee Lukes Corp., \9 463 F 3d 196 (2d Cir. 2006) (per curiam) Foley v. White, 835 F 3d 561 (6th Cir. 2016)... - Gonzales v. Crosby, 545 U.8. 624 (2005)............. . Gray v. Gray, 45 F. App’x 624 (10th Vir. 2014) (per curiam).......... . 16 (rrendy v. Pennaylvana, 248 F. App’x 448 (3d Cir. 2007) os 16 Hartison v. Beli, 556 U.S. 180 (2009) Harrmgton v. Richter, 562 US. 86 (2011). | n Henderson v. Stalder, 407 F 3d 351 (Sth Cir. 2005) Lz parte Hinea, Nos. WR-40,847-01, WR-40,447-08, 2012 WL 4928868 (Tex. Crim. App. Oct. 16, 2012) Jaffe v. Brown, 473 F. App’x 657 (9th Cir. 2012) Johnson v. Lee, 136 S. Ct. 1802 (2016) (per curiam) Jones v. Page, 76 F.3d 831 (7Ttb Cir. 1996) Landano v. Rafferty, 859 F.2d 301 (3d Cir. 1988) (per curiam) Lee v. Humphrey, No. CV 510-017, 2013 WL 4482461 (S.D. Ga. Aug. 20, 2013) Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. T3T (1976) eee nnne Lora v. O'Heaney, 602 F 4d 106 (2d Cir. 2010) ....... 19 Mahone v. Ray, 326 F.2d 1176 (11th Cir, 2008) 2 sce eee ernennee 19 Martel v. Clair, 565 U.S. 648 (2012). _ 23, 23 Martinez v. Ryan, 666 U.S. 1 (2012) 3, 2A, Matthews v. White, 807 F 34 756 (6th Cir. 2015) 2A, 25 Mayle v Feliz, 545 U.S. 644 (2006)... tenia i 21 Newbury v. Stephens, 135 8. Ct. 1197 (2015) - e 2A Panetti v. Quarterman, SEL U.S, 9BD (2007) eee enc ecenernnnnnes 16 in ve Pickett, 842 F.2d 998 (Bth Cir, 19BB) ence 27 ‘x parte Reed, Nos. WR-00,961 -04, WR-50,961--05, 2009 WL 97260 (Tex. Crim. App. Jan. 14, 2008) 16 Rhines v. Weber, 544 U.S. 268 (2006) i, 11, 14, 16 Rocha v. Thaler, 626 F 3d 815 (5th Cir. 2010) 17 Roajem v. Gibson, 245 F 4d 1130 (10th Cir. 2001) 26 Royem vu. Workman, 656 F 2d 1199 (10th Cir. 2011) 26, 28 Royal v. Taylor, 188 F 2d 239 (4th Cir. 1999) 0... - 31 Schniro wv eT 24, 30 Slack vu. McDaniel, 629 U.S. 473 (2000) 14 Sonnier v. State, 913 S.W.2d 511 (Tex. Crim. App. 1995) 6 Ex parte Staley, 160 §.W.3d 56 (Tex. Crim. App. 2005) 16 466 U.S. 668 (1984) —1, 12, 22 Taylor v. Horn, 504 F 3d 416 (8d Cir. 2007) P mt) Trevino v. Thaler, 133 8. Ct. 1911 (2012) : SB United States v. Brandon, 17 F.3d 409 (1st Cir. 1994) - 5 United States v. French, 566 F.3d 1091 (10th Cir. 2009) — _ 21 United States v. Husband, 312 F.3d 247 (7th Cir. 2002) 20 United States v. Parker, 4 F. App’x 111 (2d Cir. 2001) 2 /nited States v. Pedraza, 466 F 3d 982 (10th Cir. 2006) 19 Unsted States v. Pitts, 346 F. App’ 889 (3d Cir. 2009) ~ ) Umated States v. Rodrigues, 833 F.2d 1536 (11th Cir. 1987) (per curiam) — 23 United States v. Stewart, 311 U.S. 60 (1940). cians 2B United States v. Thurmon, 413 F364 762 (8th Cir. 2005) — a) Wackerly v. Workman, 580 F.3d 1171 (10th Cir. 2009).......... 3 Waddrop v. Jones, 77 F.3d 1308 (11th Cir. 1996) = Walker v Martin, — 16 Wiggins v. Smith, 539 US. 510 (2008). 6 Wilkine u Davia, 832 F.3d 647 (6th Cir. 2016) 21 Wilkens vu. Davis, No. 16-728, 2017 WL 103666 (Jan. 11, 2017)... e 2A Willsame v. Thaler, 602 F.3d 291 (5th Cir. 2010) 19 Wuson v. Humparey, Civil Action No. 5:10-CV-489, 2011 WL 2709696 (M.D. Ga July 12, 2011). -eeeeB v. Angelona, 151 F.3d 161 (4th Cir. 1998) 2 Constitutional provisiona, statutes and rules: U.S. Const. amend. VITI 10, 13, 18, 21 18 U.S.C.: § 3006A. 7 2 § 300GA(eX1) tn 2 § 8008A(e)(3) § 36921). i, 9, 10, 21, 28, 27 § 3699(g (2) w2T, 28 23 USC.: § 1291 27 § 2244(b) 11, 19 § 2244(dX1)(A) — § 2244dX1)(D). 20 § 2244(dX(2)..... 20 § 226%(c\(2)... 14 § 2264(b)(2) ... dA § 2254e)(2) 9, 29 Pub. L. 100-690, 102 Stat. 4181 (Nov. 18, 1988) ..... 28 Tex. Code Crim. Proc. art. 11.071 § Ka) scetidalitchiiatteiamasiantimaadl a | vii In the Supreme Court of the United States No. 16-6796 CARLOS MANUEL AYESTAS, PETITIONER Lorig Davis, Dizgcror, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, (INSTITUTIONAL DiVISION) ON PETITION FOR A WRIT OF CBRTIORAR! TO THE UNITED STATES COURT OF APPRALS POR THE FIFTH CIRCUIT Netther question presented warrants the Court's consideration. The lower courts de- nied petitioner's request for a Rhines stay only after determining thai petitioner's new claims would be procedurally defauited. The courts’ rulings do not implicate a circuit split or an important federal question, but only a correct application of Texas law. As for his request for funding to perform a mitigation investigation, the Fifth Circuit determined that, even if petitioner was able to farther investigate evidence af his substance abuse and mental illness, his ineffective-assistance claim would still fail under the prejudice prong of Strick- land v. Washington, 466 U.S. 668 (1984). Petitioner has not established that a circuit split exists regarding whether to fund investigations of meritless claims. Morcover, there are numerous vehicle problems. In order to grant petitioner relief on either issue, the Court would have to address other threshold jurisdictional questions— whether petitioner's request to add new claims is a second or successive habeas petition, and whether appellate courts have jurisdiction over appeals of § 3599(f) rulings. Likewise, petitioner has not explained how he will overcome the limitations on fedaral review of state habeas decisions impased by the Antiterroriam and Effective Death Penalty Act. The Court should therefore deny the petition. STATEMENT I, TRIAL AND CONVICTION On September 5, 1996, petitioner Carlos Manuel Ayestas and two others entered and ransacked the home of Santiaga Paneque, a 67-year-old woman.’ Pet. App. C2-3; Pet. App. F3. They bound Paneque with duct tape on ber ankles and wrists and beat her, causing multiple lacerations and broken bones in her elbow, neck, and face. Pet. App. C3-4. They then strangled her to death, which would have taken three to sfx mitutes. Pet. App. C4. Petitioner was identified by a neyghbor as baving visited Paneque two weeks eariier, and petitioner's fingerprints were on the duct tape used to bind Panequa Pet. App. 02-5. Petitioner also confeased to Henry Nuila that he had been involved in murdering a woman in Houston and seked Nuila to help him kill bis two accomplices because “they had spoken too much.” Pet. App. C5. Petitioner threatened to kill Nuila if he refused to help. Pet. App. C6. A Harris County jury convicted petitioner of capital murder—epecifically, intentionally conunitting murder in the course of committing or attempting to commit a burglary or rob- bery. Pet. App. C5; see also Tex. Penal Code § 19.08(a)(2). ' Petitioner’s real name is Dennis Zelaya Corea, but he was charged and convicted un- der the name Carios Manuel Ayestas. Pet. App. A2. 2 At the punishment phase, the State presented evidence that petitioner served prison sentences in California and Texas for poaseasion and purchase for sale of narcotics, bur- giary, and misdemeanor theft and that he was the subject of a California arrest warrant for Wegal transportation of aliens. Pet. App. C5. The State alao called Candelario Martinez, who testified that, three days after the murder of Paneque, petitioner pulled a gun on him, took his personal belongings, and announced that he or one of his accomplices was going to kill Martinez. Pet. App. C5-6. Petitioner eventually released Martinez, but threatened to kill Martines’s family if he told the police. Pet. App. C6. As evidence of mitigation, petitioner’s counsel presented three letters from an instruc: tor at the Houston Community College System, indicating that petitioner was enrolled in an English-as-e-second-language course in the Harris County Jai) and was a serious and attentive student. R.6219-24" Petitioner’s trial counsel, Diana Olveru, explained during state habeas proceedings that petitioner affirmatively told her before trial that he did not want her to contact his family in Honduras, and only Iater did he acquiesce to her contacting his family after a jury had been chosen. Pet. App. C8-9. At that point, counsel sent multiple letters to petitioner’s fam- ily (on May 29, June 10, and July 2, 1997) and had multiple phone conversations with them beginning on June 8. Pet. App. C9. Counsel also contacted the American Embassy in Hon- duras to try to expedite any travel arrangements and informed the Honduran consulate of the upcoming trial, Pet. App. C9; R.510. Petitioner's mother, however, did not appear con- cerned for her son and seemed evasive in her responses, Pet. App. C9. Petitioner's sister ~' The Fifth Circuit's paginated record on appeal is cited as “R.{page).” 3 said it would be difficult to travel due to their father’s illness and for economic reasons Pet. App. C9. Trial counsel was ultimately unable \o obtain the family's presence at the punish- ment phase of petitioner’s trial. The jury found that there was a likel{hood that petitioner would commit future acts of criminal violence and that the mitigating evidence did not warrant a sentence of life impris- onment. Pet. App. C6; see also Tex. Code Crim. Proc. art. 37.071, § 2. The trial court sen- enced petitioner to death. Pet. App. C6. The Texas Court of Criminal Appeals affirmed petitianer’s conviction and sentence on November 4, 1998. R.1 702-21. Il. STATS HABEAS PROCERBDINGS Petitioner was given new, state-appointed counsel for his state habeas proceedings. R.706, 5696. State habeas counsel filed a state habeas application that alleged Len instances of ineffective assistance of trial counsel, in addition to raising five other constitutional is- sues, R.6269-73. As relevant here, state habeas counsel argued that trial counsel Otvera was ineffective, in part, because she failed to adequately investigate mitigation evidence by talk- ing to petitioner's family. R.6294-5301. State habeas counsel obtained affidavits from peti- tioner’s mother and two of his sisters. R.5353-76. They described pelitioner’s “stable, mid- die class background” in which his mother and father had no marital probleme and ran a small business in Honduras. R.5857, 5365, 5373. They also stated that petitioner had no major injuries or {Ilneases, no discernable learning disorders, and never got into any trouble with the law. R.6368, 5366, 5373-74. Instead, he received above average grades and attended church. 2.5868, 5366, 5374. State habeas counsel also hired an investigator who planned to pursue evidence of sub- stance abuse by “conducting a thorough interview” of petitioner and interviewing individu- ala with whom petitioner was staying at the time of the crime. R.721. The investigator also suggested obtaining a psychological history of petitioner as part of creating a full social history, but did not note any specific mental-health issues. R.720. In response, the State provided an affidavit from trial counse! Olvera who explained, as noted above, that petitioner repeatedly told her not to contact his family, that she made multiple attempts to contact his family when he changed hia mind, and that she was unable to secure their presence at trial R.5516-18. At the request of state habeas counsel, petitioner was examined by a psychologist in 2008 (six years after his trial) for purposes of determining his intellectual functioning. R.776. The doctor determined he had an IQ in the “high average range,” but did note that pectioner was “developing some delusional thinking” and had been placed on “antipaychotic medication.” 8.776." In 2008, the state district court recommended findings and conclusions that rejected petitioner’s ineffective-assistance claim, and the Texas Court of Criminal Appeals adopted those findings and conclusions. 1t.5254-65. The district court specifically found that trial counsel Olvera spoke with (petitioner) numerous times about his family attending the trial; that (petitioner) repeatedly told counsel that (he) did not want his family con- tacted because of problems he and his family had in their home country of Honduras; that, to the best of counsel's recollection, | petitioner) did not agree * Although state habeas counsel included this letter as an exhibit to one of petitioner's state habeas filings, counsel redacted the portion regarding delusional thinking and anti- psychotic medication, R.5682, as counsel was using the letter to argue that petitioner should have been permitted to testify in his own defense, R.5558. = a to having his family contacted until after jury selection was completed; and that tria] counse! made every effort to contact (petitioner]'s family once (he) agreed. R.5919. The court made other findings regarding specific attempts by Olvera to contact petitioner's family and their ambivalent response, 5920-22, and ultimately concluded that Olvera could not be considered ineffective for failing to contact petitioner’s family, given petitioner's instructions to the contrary. R.6983 (citing Sonmier v. State, 913 8.W.2d 611, 522 (Tex. Crim. App. 1996) (holding that counse! was not ineffective for following defend- ant’s expreas wishes not to present punishment evidence)). After adopting the relevant find- ings and conclusions, the Texas Court of Criminal Appeals denied habeas relief. R.f254-65. ILL FEDERAL HABEAS PROCEEDINGS A. Petitioner filed his federal habeas petition in 2009 with new counsel. K.8-68, Perti- nent here, petitioner raised an ineffective-assistance claim regarding the alleged failure of trial counse) Olvers to adequately investigate potentially mitigating evidence. R.14-33, see Wiggins v. Swith, 589 U.S. 510 (2008), Petitioner's allegations fel) into two categories: (1) mitigation evidence that he betieved could have been provided by his family, 221-28; and (2) evidence relating to drug and alcoho! ase and mental fineas, R.28-30. The information that petitioner asserts would have been provided from his family is the earme a8 that identified in his state habeas petition R21-28, 501 (describing petitioner's good character traits, his kindness and reputation for helping the lese fortunate, his lack of criminal history in the Honduras, and the “bad influence” of one of his accomplices). Peti- tioner relied on the affidavits procured by state habeas counsel to argue that this infor mation should have been discovered and presented to the jury a8 part of a mitigation case. R21-28. Petitioner also argued, for the first time, that trial counse! should have discuvered and presented evidence to the jury of his substance abuse (alcohol and drugs) as weil as his mental illness (psychosis and schizophrenia).‘ K.28. As evidence, petitioner relied on his Texas Department of Criminal Justice prison medical records beginning in 2000. R.28 Those records noted his history of substance abuse, some of his mental-health symptoms, and his diagnosis of peychosis and schizophrenia in 2001. R.28-29. In response, the respondent Director argued that, as to the mitigation information that would have been provided by petitioner's family, trial counsel Olvera was not ineffective for following petitioner's wishes that she not contact his famity. I.113-15. Respondent also ar- gued that petitioner had not exhausted his state court remedies regarding his claims of substance abuse and mental illness. R. 101-04. The federal district court concluded that petitioner had procedurally defaulted his in- effective-assistance claim regarding his substance abuse and mental illness and that there was no cause and prejudice that would excuse the default. R.502-07. The court then rejected petitioner’s ineffecttve-assistance claim as it pertained to the failure to contact his family. R.507-12 The court determined, as did the state habeas courts, that petitioner could not complain Unat his counse) was ineffective when counsel followed petitioner's affirmative in- structions not to contact his family. R.511-12 (citing multiple cases). The court then denied a certificate of appealability. R.625 27. ‘ The parties have never litigated whether petitioner, in fact, has substance abuse prob- lems or a mental i/ness. Respondent does not concede either point, but the validity of those assertions does not impact whether the Fifth Circuit acted correctly or whether this Court should grant certiorari. The Fifth Circuit also deniod petitioner's requeat for a certificate of appealability. Ayes. tas v. Thaler, 462 F. App'x 474 (5th Cir. 2012) (per curiam). The court found no error in the state court’s decision that petitioner prevented trial counsel Olvera from conducting a thor. ough mitigation investigation by telling her that she could not contact his family. Jd at 480, The Fifth Circuit also concluded that petitioner’s unexhausted claima were procedurally defaulted, noting that “errors by habeas counsel cannot provide cause for a procedural de- fault.” Jd at 482. Petitioner then filed a certiorari petition in this Court based on Martines v Ryan, 566 U.S. 1 (2012). Shortly thereafter, this Court decided Trevino v. Thaler and held that, under the Texas habeas syutem, the ineffectiveness of state habeas counsel can provide cause to overcome a procedural default. 183 S, Ct, 1911 (2013). The Court then granted petitioner's previous certiorari petition, vacated the Fifth Cireuit’s judgment, and remanded in light of T'vevino. Ayestas v. Thaler, 138 S, Ct. 2764 (2018). The Fifth Circuit remanded to the dis- trict court “to reconsider Ayestas's procedurally defaulted ineffective aasistance of counsel claims in light of Trevino.” Ayestas v. Stephens, 553 F’. App’x 422, 428 (6th Cir. 2014) (per curiam), B. 1. On remand, petitioner argued that state habeas counsel was ineffective for fuiling to raise an ineffective-nasistance-of-trial-counsel claim with respect to the potentially miti- gating evidence of his substance abuse and mental illneas. R.647-881.' After briefing on re- — eee ee * Petitioner attached numerous exhibits to his post-remand brief and relies on them in his certiorari petition. R.691-881; Pet. 5-18. But many of those exhibits were not presented to the state courta, R.707-12, 845-63, 887-81, and some of them were not created unti) after mand was complete, petitioner moved in an ex parte and sealed motion for funding to con- duct a mitigation investigation under 18 U.S.C. § 359%). R.942-50; Pet. App. G (filed under seal). Approximately two weeks later, the district court denied petitioner's habeas petition, concluding that his ineffective-assistance-of-trial-counsel claim concerning his substance abuse and mental illness was procedurally defaulted. Pet. App. C. The district court began by examining trial counsel’s actions to determine whether there was an ineffective-aseis- tance-of-trinl-counsel claim that state habeas counsel could have raised. To the extent peti- tioner’s mitigating evidence rested on information provided by petitioner's family, the court continued to hold that trial counsel Olvera was not ineffective, given petitioner's instruc- tions to her. Pet. App. C10-11, As for petitioner’s arguments regarding mental illness, the court found no evidence that trial counsel Olvera should have known of petitioner's mental itiness at the time of trial. Pet. App. C11. The records relied on by federal habeas counsel al) post-dated his criminal trial. Pet. App. A10, C11. The court also noted that state habeas counsel had raised many ineffective-assistance claims and was not required to raise every non-frivolous claim. Pet. App. C12. The court explained that “in light of the extremely bru- tal nature of Ayestas’s crime and Ayestas’s history of criminal violence, it is highly unlikely Uhut evidence of substance abuse would have changed the outcome of the sentencing phase of trial or of the state habeas corpus proceeding.” Pet. App. C12. i ee = remand, R.698-704, 864-72. Petitioner bas not explained how he has satisfied 28 U.S.C. § 2254(e2) which limite the introduetion of new evidence in a federal habeas proceeding. * ‘That ex parte motion has remained sealed and has not, to date, been provided to coun- sel for respondent, even though it has been made part of the Petition Appendix and pro- vided to the Court under seal. The district court also denied petitioner's request for funding for additional investiga tive services under 18 U.S.C. § 359%(f). Pet. App. C13-14. The court determined that peti- Uoner had not shown that trial counsel Olvera was deficient, that there was a reasonable probability that his substance-abuse evidence would have changed (he outcome of his crim- inal proceedings, or that state habeas counse] was ineffective. Pet. App. C14. Because peti- Uioner’s Lneffective- assistance-of-trial-counse! claim lacked merit and was procedurally de- faulted, the requested funding was not “reasonably necessary” under § 359K). Pet. App C14 Finally, the court denied a certificate of appealability and entered a final judgment on November 18, 2014. Pet App. C1416, R968. On December 16. 2014, petitioner moved to alter or amend the judgment under } ederal Rule af Civil Procedure 59(@), arguing that Martinez and Trevino required further devel- opment of the evidence and that the district court had prematurely rejected his ineffective- assistance claim. R.969-1006. While the district court was considering Unis motion, peti- tioner’s federal habeas counsel reviewed the prosecution's file at the District Attorney's office in Houston and discovered a capital memo prepared in 1996 by Keily Siegier. R. 1136; Pet. App. F. The Siegler memo listed two potential aggravating circumstances: (A) the vic- tim was a helpleas 67 year old woman killed in her home, and (B) petitioner was not a citizen. Pet. App. F3. A line was drawn through the secand aggravating circumstance regarding petitioner's citizenship. Pet App. F3. On January 9, 2015, petitioner moved to amend he petition under Federal Rule of Crvil Procedure 15 to include an equai-protection claum and an Eighth Amendment claim based on the Siegler memo. R.| 132. On January 14, 2015, pe- titioner also filed a supplemental motion to alter and amend the judgment that argued for inclusion of these new claims, as well as a motion to stay and hold the petition in abeyance 10 while he exhansted his new claims in state court pursuant to Rhtnes v. Weber, 544 US. 269 (2006). R.1143, 1162." The district court demed the motuon to amend petitioner's federal habeas petiuon and moton for a Rates stay. Pet. App. D. The court noted that a Hhines stay is mappropriate when a claim is “plainly meritless.” Pet. App. D6 (quoting Rhines, 544 US, at 277). The court then referenced Texas's abuse-of-the writ statute, which limits subsequent habeas applications to cases when, as relevant bere: [Thhe current claims and issues have not been and could not have been pre- sented previously i a timely initial application or in a previously considered application filed under this article of Article 11.07 because the factual or legal oasis for the ciaim was unavailable on the date the applicant filed the previous application. Pet. App. D5 (quoting Tex. Code Crim. Proc. art. 11.071 § S(a)). The court noted that peti- tianer failed to show that the Siegler memo could not have been previously discovered. Pet. App. D5. Absent that showing, the Texas courts would not consider petitioner’s subsequent petition. Pet. App. D6-6. ‘The district court later denied petitioner's motion to alter or amend the judgment. Pet. App. E The court also held that petitioner's supplemental motion to aller or amend the Judgroent regarding the Siegier memo was, in fact, 2 second or successive petition, given that it fell outside the limited scope of the Fifth Circuit’s remand Pet. App. £3. Conse. quently, cbe district court concluded it was without jurisdiction to hear petitioner's new claims unless and until petitioner complied with 28 U.S.C. § 2244(b). Pet. App. E3-4. —_———_ ———— ’ Petiuoner makes additional allegations regarding Siegier that he did not make below Pet. 3-4 n.3. The Court should decline to consider that extra-record evidence. 1] 2. The Fifth Circuit affirmed the denial of funding and declined to grant a certificate of appealability on petitioner's request for a Rhwmes stay. Pet. App. Al As to the denial of funding, the Fifth Circuit held it was permissible for the district court to determine the viability of petitioner's ineffectrve-asmstance-of trial-counsel claim before deciding whether to authorize funding. Pet. App. A8. The court further interpreted the district court's ruling “as being that any evidence of ineffectiveness, even if found, would not support relief.” Pet. App. AS. The court then turned to whether trial counsel was ineffective and whether that ineffectiveness prejudiced petitioner under Strickland, 466 US. at 687. The Fifth Circuit again rejected any arguments based on information that would have come from petitioner's family due to petitioner’s request that trial counse! not contact ns family. Pet. App. A9-10. The court also agreed that it was highly onlikely that evidence of substance abuse would have changed petitioner's sentence, given the brutality of the crime Pet App. All. Regarding mental illness, the court noted that all evidence of mental fliness post-dated petitioner's criminal trial. Pet. App. Al0. The court erroneously etated that trial counsel Olvera had petitioner examined by a psychologist and was, therefore, not ineffec- uve. Pet. App. All. But the court also ruled that evidence of mental ness was not substan- ually likely to change petitioner’s sentence. Pet. App. All. Consequently, even if peti- Goner’s investigation was funded, he could act have shown prejudice under Strickland. As a result, state habeas counse] was not ineffective for failing to raise the same claims and petatoner’s inefTective-ansistance-of tria}-counsel claim remained procedurally barred. |’et. App. Al2 The court, therefore, found no abuse of discretion in the denial of funding for a mitigation investiganon under § 3699%(f). Pet. App. A12. The court also denied petitioner's request for a certificate of appealability regarding his motion for a Rhines stay. Pet. App. Al3-17. The court agreed with the district court's conclusion that a stay would be futile because Texas courts would not have considered pe- titioner’s second habeas application. Pet. App. A15 (citing Tex. Code Crim. Proc. art. 11.07) § 6(aX1)). Becanse petitioner had not explained why the Siegler memo was unavailable to him at the time his initial state habeas application was flied, be could not meet the state standard for a second application. Pet. App. Al6-17. Petitioner moved for panel and en banc rehearing. The court denied rehearing en banc, and the pane! issued a short opinion on rehearing. Pet. App. B. The court recognized that it had incorrectly stated that petitioner was examined by a psychologist in 1997. Pet. App. B2. The court, however. held that its result was unchanged because petitioner had not proven prejudice under Strickland. Pet. App. B2. Petitioner filed the instant certiorari petition on November 7, 2016. ARGUMENT ( REASONABLE JURISTS WOULD Not Desats WHETHER TO GRANT 4 RALVES STAY TO PuRSsUE A CLAIM THAT WILL BB PROCEDURALLY DEFAULTED. The first iasue that petitioner raises—whether he should have received a Rrenes etay —— does not warrant the Court's review. The lower courts were correct to deny this stay, and petitioner has not identified « cireuit split or a significant federal question Beyond that, petitioner faces a jurisdictional hurdle: his new equal-protection and Kighth Amendment claims are a second or successive petition that the district court is without jurisdiction to consider. Petitioner has also not explained how his new claims will avoid AEDPA’s statute of limmttahone. A. The Fifth Circuit's ruling that habeas proceedings should not be stayed to exhaust procedurally barred claims does not implicate a circuit split. Petitioner's Raines iesue is presented in the “:amework of a certificate of appealability. A certificate of appealabiity may issue “only if Lue applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied petitioner's request to amend and stay on procedural grounds, he must show that reasonable jurists would debate whether the district court was correct in that procedural ruling and whether he stated valid claim on the merits. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner's specific complaint is that Lhe lower courts applied an “anticipatory default” to his new claims when they concluded that Texas’s abuse-of-the-writ statute would bar petitioner from exhausting those claims in atate court. Pet. 18-20. Petitioner has not identi- fied a cireutt split on this issue, has not explained his conclusion that Texas’s abuse-of-the- writ statute is not an adequate and independent statetaw ground for denying a habeas pe- tution, and has not demonstrated that the lower courts erred. |. Rhanes held that district courts faced with “mixed” habeas petitiona—petitions containing both exbausted and unexhausted claims —may stay the litigation in certain cir- cumstances to allow the habeas petitioner to exhaust unexhausted claims in state court. 544 U &. at 277. But the Court cautioned that the stay and abeyance procedure should be avail- able “only in limited circumstances.” /d. The district court must determine that there wax “good cause” for the petitioner's failure to exhaust claims in state court. /d The Court also concluded that t would be an abuse of discretion to grant a stay when the “unexhausted claims are plainly meritless.” /d l4 The Fifth Circuit accurately identified this legal standard and correctly concluded that “(when a petitioner is procedurally barred from raising (his] claims in state court, his un- exhausted claims are plainly meritiess.” Pet. App. Al4. The court then applied the Texas abuse-of-the writ statute to petitioner's new claims, concluded that they would be proce- durally defaultad, and denied a Rhines stay to pursue the claims further. Pet. App. Al5-17. Despite his argument that the Fifth Circuit wrongly relied on an “antiapatory” pruce- dural default, petitioner has not identified any other circuit court that has held differently in these circumstances. Pet. 17-20. To the contrary, several circuits have, in the context of addressing mixed petitions, considered whether a procedural bar would ultimately prevent Lhe petitioner from presenting unexhausted claims in federal court. Se, ¢.9., Gray u Gray, 45 F. App’x 624, 626 (10th Cir. 2016) (per curiam) (stating that a district court may, among other options, choose to apply an “antictpatory procedural bar” to unexhausted claims in a mixed petition or it may choose to stay the case under Rhines); Jaffe v. Browm, 474 F. App’x 557, 660 (9th Cir. 2012) (requiring the district court to determine “whether any California procedure remains available” to a petitioner with unexhausted claims and stating that pro- cedurally defaulted claims must be diamiased); Grundy v. Pennsylvania, 248 F. App'x 448, 452 (3d Cir. 2007) (affirming denial of a hines stay when the unexhausted claim would have been procedurally barred). The Fifth Circuit’s conciusion-—that claims that would be procedurally defaulted are “plainly meritless” and, thus, do not warrant a Rhines stay—is not unusual or unprece- dented AEDPA is designed to “further the principles of comity, finality, and federalism.” to “redue{e) piecemeal litigation,” and to “streamlin/e| federal habeas proceedings.” Pan- oti v. Quarterman, 56) U.S. 930, 945-46 (2007). There is no need to prolong petitioner's 15 federal habeas proceedings with a hwmes stay if his unexhausted claims will be procedur- ally defaulted. See Rhines, 644 U.S. at 277 (noting that granting a stay “frustrates AE DPA's objective of encouraging finality”). 2. Petitioner incorrectly argues that the Fifth Circuit erred in applying Texas’s abuse-of-the-writ statute. As relevant here, Texas's abuse-of-the-writ statute prohibits suc. cessive habeas petitions when “the current claims and issues have not been and could not have been presented previoualy in a timely initial application... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.” Tex. Code Crim. Proc. art. 11.071 § 5()(1). To avoid this procedural bar, petitioner asserts that § 5(a)(1) is not an “adequate” procedural ground for denying a habeas petition. Pet. 24; see also Pet. i (stating that the procedural bar was “not actually grounded in state law”). But he provides no citation or explanation for this argument. A state rule is “adequate” when it is “firmly established and regularly followed.” Walker v Martin, 662 U.S. 307, 316 (2011). Texas has regularly applied § 6(aX1) to bar sub- sequent habeas petitions. Ses, 6g, Kz parte Hines, Nos. WR -40,347-01, WR-40,347-03, 2012 WL 4928863, at *1 (Tex. Crim. App. Oct. 16, 2012); Bx parte Reed, Nos. WR-50,961- 04, WR-60,961-05, 2008 WL 97260, at *1 (Tex. Crim. App. Jan. 14, 2009); Bz parte Staley, 160 8. W.3d 66, 63-66 (Tex. Crim. App. 2005). The Fifth Ctrenit har also routinely recognized § 5(a)1) as providing an adequate and independent state-isw ground for denying « habeas claim. See, 4.9., Butler v. Stephens, 625 F. App’x 641, 667-59 (5th Cir. 2016) (per curiam); Aguilar v. Dretke, 428 F 3d 526, 633 (6th Cir. 2006) (“This court has consistently held that Texas’ abuse-of-writ rule is ordinarily an ‘adequate and independent’ procedural ground on which to base a procedural default ruling.”); see also Johneon v. Lee, 136 S. Ct. 1802 (2016) 16 (per curiam) (reversing Ninth Circuit’s decision that California's bar on subsequent habeas petitions was not adequate and independent)." ‘Texas's abuse-of-the-writ statute is an adequate and independent bar to habeas relief. As a result, it was not erroneous for the Fifth Circuit to consider whether petitioner's new claims would be procedurally defaulted under § &(a)(1). 3. Because petitioner would need to file a subsequent habeas petition in state court, he would have to demonstrate that the Siegier memo (the “factual basis” for his claim) was “unavailable” at the time his original state habeas petition was filed in order to avoid the procedural bar of § 6(aX1).' He has not done so. The key question that petitioner has failed to answer was why it took until December 2014, after he had been denied federal habeas relief, before any of his attorneys discovered the Siegler memo. It is possible that the memo, written in 1995 and approved in 1997, has been in the prosecution's file and available to petitioner's counsel for over fifteen years. Ses Pet. 23 (explaining that the State permits defense counsel to review its files after trial and after redacting any work product). Petitioner has not demonstrated otherwise, and it 1s his burden to show that the factual] basis for his new claim was previously unavailable. Simply ° There is an exception to this general rule: when a Texas court determines that the legal or factual basis of the subsequent petition was unavailable but then denies the petition on ite merits, the decision is no longer “independent.” Rocha v. Thaler, 6. 3 F.3d 315, 835 (th Cir. 2010). That scenario is not presented in this case, as the lower courts were con- cerned with the availability of petitioner's new evidence, not the merits of his constitutional claims. * Respondent does not concede that the Siegler memo would have established a consti- tutional violation. 17 stating that the memo was not found unti] 2014 does not explain whether it was unavailable until 2014."° Absent an explanation of the Siegler memo's unavailability, Texas courts would apply the abnse-of-the-writ statute to bar petitioner’s subsequent habeas application, and federal courts would determine the new claims were procedurally defanited. Reasonable jurists would not debate whether a Rhines stay was appropriate for this mernUese claim, and the Fifth Circuit properly denied a certificate of appealability. B. Jurisdictional and statutory questions make this case a poor vehicle to address the first question presented. This case is also a poor vehicle for addresaing the first question raised by petitioner. First, petitioner’s request to add equal-protection and Eighth Amendment claims should be treated as a request to file a second or succeasive petition that has not been authorized by the Fifth Circuit. Second, petitioner has not explained how be would overcome AEDPA's statute of limitationa. 1. Petitioner’s request to add new claims is a second or successive petition that has not been authorized by the Fifth Circuit. The district court property denied petitioner’s request to add new claims based on the Segier memo to his existing habeas petition because hus new claims are a second or encces- sive petition that was never authorized by the Fifth Circuit. The district court waa, there- fore, without jurisdiction to consider petitioner's new claime. See Burton vu. Stewart, 549 '° That the memo is prtvileged is of no moment at this juncture. Pet. 22-24. The fact that it is privileged explains why it was not voluntarily turned over to petitioner's counsel during the criminal trial. But it does not explain how it ended up in the publicly available file af the prosecutor, when it was placed there, or whether peUUoner could have found it sooner. 18 U.S. 147, 157 (2007) (per curiam) (holding that a district court is without jurisdiction to en- tertain second or successive habeas petitions that have not been authorized by the court of appeals). Because the district court had already denied his habeas petitien and entered a final judgment, petitioner sought to add his new claims through a Rule 69e) motion to alter or amend the judgment See supra pp. 9-11. A Rule 59(e) motion that secks to add new claime should be treated as a second or successive habeas petition. See Williams vu. Thaler, 602 F’Sd 291, 308-06 (5th Cir. 2010); United States v. Pedraza, 466 F 3d 982, 984 (10th Cir. 2006). Petitioner was therefore required to seek acthorization fram the Fifth Circuit before add- ing hia new claims. See 28 U.S.C. § 2244(b). Even so, petitioner's “supplemental” Rule 59(e) motion, raising the Siegler-memo claims, was not filed until January 14, 2016, R.1148-—fifty-seven days after the district court's final judgment. The Federal Rules of Civil Procedure prohibit courts from extend. ing the deadline to file motions under Rule 5e). Fed. R. Ctv. P. 6(b)(2). Because the issues raised in his supplemental Rule 6%e) motion are enturely distinct from those in his timely fled motion, his supplementa) motion shouid not relate back to the filing of his original motion. See Feldbery v. Quechee Lakes Corp., 468 F Sd 196, 197 (2d Cir. 2006) (per curiam); see aleo Fed. R. Civ. P. 7(b)(1)(B) (motions must “state with particularity the grounds” for seeking relief). he circnit courts typically treat untimely Rule 5%e) motions as Rule 60(b) motions seeking relief from a final judgment. See, ¢g., Lora v. O'Haaney, 602 F.3d 106, 111 (2d Cir. 2010); Mahone v. Ray, 226 F.3d 1176, 1177 n.1 (11th Cir, 2003). Thus, petitioner's untimely supplemental Rule 5%e) motion should be considered as a Rwe 6b) motion. 19 In Gonzalez v. Crosby, the Court held that Rule 60(b) motions that seek to add entirely new constitational grounds to a habeas petition must be treated as second or successive habeas petitions. 645 U.S. G24, 582 (2005), Consequently, petitioner must comply with § 2244(b) and first seek authorization to file a second habeas petition from the Fifth Circuit. He hae not done so and, until he doea, the district court will lack jurisdiction over his claims. This same result is reached by applying the mandate rule, as both lower courts did. Pet. App. Al8-14, E3-4; see Henderson v. Stalder, 407 F 3d 361, 364 (Sth Cir. 2006). Petitioner's request to add new claims falls outside the mandate of the Fifth Circuit, which mstructed the district court to consider the unexhausted ineffective-assistance claim. Ayestas, 553 F. App’x at 423. And, again, petitéoner has not explained why he could not have raised his new claims before the Fifth Circuit’s ruling on his initial appeal. See [/ntted States v. //us- band, 312 F 3d 247, 250 (7th Cir. 2002) (“[A Jny issue that could have been but was not raised on appeal is waived and thus not remanded") 2. Petitioner's new claims would be barred by AEDPA’s statute of limitations. Petitioner also fails to explain how he would avoid AEDPA'. «:atute of limitations. Any (ederal habeas petition must be filed, a# relevant here, within one year of “the date on which the judgment became final by the conclusion of direct review or the exptration of the time for seeking such review” or “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. $ 2244(d)(1)(A), (D). Time spent parsuing state habeas relief is not counted aguinst this lim- itation. /d § 2244(d)(2). This Court has held that “{ajn amended habeas petition .. . does not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief sup- ported by facta that differ in both time and type from those the original pleading set forth." Mayle v. Feliz, 545 U.S. 644, 650 (2006). Petitioner’s new equal-protection and Eighth Amendment claims are different in time and type from those raised in his original federal habeas petition and, therefore, would not relate back. Should petitioner be permitted to amend his petiuon and assert his new claims, those clatms would be wei! outside the one ycar limitations period. Petitioner would, therefore, have to prove that the factual predicate of his claims (the Siegler memo) could not have been discovered through the exercise of due diligence unti) leas than one year before bringing his clam. As noted above, petitioner has not established that the Siegier memo could not have been discovered earlier. Conse- quently, petitioner has not shown that his claim would satiafy AEDPA's statute of limita- tions, These furiadictional and statutory obstacles would prevent the Court from reaching the merits of petitioner's Rhtnes arguments and present additional reasons why the Court should not grant certiorari. IL Tue Lower Courts Proper.y DeNmeD INVESTIGATIVE FUNDING AFTEX DETERMINING THAT PRTITIONER’S UNDERLYING CLAIM WOULD STILL Lack MEarr. In the second question presented, petitioner urges the Court to find that the Fifth Cir- cuit unreasonably Interpreted and applied 18 U.S.C. § 3699(f, which states: 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 defend- ant's attorneys to obtain such services on behalf of the defendant and, if so 21 authorized, shall order the payment of feee and expenses therefor under sub- section (g). Petitioner's arguments miss the point. The }ifth Circuit determined that, even yf petitioner conducted the investigation for which he sought funding, his ineffective-assistance claim would still fail to meet the prejudice prong of Strickland. Having concluded that. petitioner's underlying ineffective-aasistance claim lacked merit, the court denied funding to further develop it. Moreover, there are significant vehicle problems: In order to address petitioner's second question presented, the Court would first have to confront whether it has jurisdic- tion over appeals of § 3699(f) decisions and whether petitioner would be able to overcome AEDPA's standards for introducing additianal evidence. A. There ia no cirvuit split regarding whether to authorize funding to investigute claima that wil) ultimately fail. 1. Because petitioner seeks to prove ineffective ansiatance, he must show not only that trial counsel Olvera’s representation “fell below an objective standard of reasonableness,” but also that “there is a reasonable probability that, absent the errors, the sentencer .. . would have concluded Lhat the balance of aggravating and mitigating circumstances did not warrant death.” Sirickiand, 466 U.S. at 688, 695. Petitioner sought funding under § 3609(f) vo assist him in investigating the alleged tneffeettveness of both trial counse! and state he beas counsel. R.942-49. The Fifth Circuit has explained that “reasonably necessary” under § 36991) means a showing of “substantial need.” Pet. App. A7-8. In uther words, the habeas petitioner must be investigating “a viable constitutional claim, not a meritless one,” and cannot be searching for “evidence that is supplemental to evidence already presented.” Pet. App. A&."' Peti- loner erroneously asserts that the Fifth Circult’s application of § 3599(f) required him to prove his Strickland claim before gaining access to funding. Pet. 32. The Fifth Circuit did not impose such « standard. Instead, the Fifth Circuit recognized that petitioner had offered a “substantiated argu- ment” regarding the need to investigate the omissions of prior counsel. Pet. App. A8. But the court determined that it was “highly unlikely” that substance abuse evidence would have altered the outcome of the sentencing phase and “concetvable, but not substantially likely,” that evidence of petitioner's mental illness would have altered the outcome. Pet. App. A9, eee also Pet. App. B2; Harrington uv. Richter, 562 U.S. 86, 112 (2011) (stating that, when assessing prejudice under Strickland, “(t]he likelihood of a different result must be substantial, not just conceivable”). Having concluded that petitioner's ineffective-assistance claum would fail to moet Strickland’s prejudice prong, the court affirmed the denial of fund- ing. The denial of funding, therefore, did not come down to some undefined gap between “reaponably necessary” and “substantial need,” as there was no need to authorize funding to develop a meritless claim, Cf Martel v. Clair, 666 U.S, 648, 666 (2012) (“The court wes not required to appoint a new lawyer (under § 3699] just so [habeas petitioner | could file a futile motion”). '' Moreover, the language in § 3699(f) states that a district court “may” authorize fund- ing, suggesting that district courts have some discretion to deny funding even upon a show. ing of reasonable necessity. The Fifth Circuit's decision to consider the merits of peditioner’s ineffective-assistance claim at Ubis stage of the proceedings is not at odds with the Court's precedent, see Mar- tines, 566 U.S. at 15-16 (anticipating that the States would argue that the underlying imef- fective-assistance claim lacked merit), or with AEDPA, see 28 U.S.C. § 2254(b)(2) (allowing disinct courte tn deny a petition oa the inerits even if the petitioner failed w exhaust his state court remedies). Cf Schrivo » Landrigan, SSO) U.S. 465, 474 (2007) (“Lf the record ... precludes habeas relief, a district court is not required to hold an evidentiary hearing.”). kina v. Davia, No. 16-723, 2017 WL 108566 (Jan. 11, 2017), Cruteinger v. Stephens, 135 S. Ct 1401 (2015); Newbury v. Stephens, 136 S. Ct. 1197 (2015). It should deny this petition as well 2 Petitioner attempts to manufacture a circuit split where there is none Pet 33-37. The cases he cttes concern different circumstances and, often different statutes or rules. He does not cite any case in which funding under § 3599(f) was authorized for a claim the court determmed was meritiess. First, the Sixth Circuit cases that petationer cites involve clemency proceedings, and, as the Sixth Circuit has recognized, “(c Jemency proceedings present different issues” than federai habeas proceedings. Matthews v. White, 807 F 3d 756, 760 (6th Cir. 2015); see also Foley v. White, 886 F 3d 66) (6th Cir. 2016). Relying on a Fifth Circuit opinion, Brown » Stephens, 762 F 3d 454, 460 (5th Cir. 2014), the Sixth Circuit has explained that “(cjlemency ‘proceedings are a matter af grace entirely distanct from judicial proceedings.” Matthews, 807 F.8d at 760 (also quoting Harbison v. Bell, 556 U.S. 180, 192 (2009). What is “neces- sary” in a clemency proceeding that ws concerned with axecutive grace is, therefore, very 24 different from what is “necessary” in a federal habeas case that is concerned with legal standards, evidence, and burdens of proof. Consequently, the Sixth Circuit cases did not consider whether to fund an investigation into a habeas claim that lacked merit. Even so, application of the Sixth Circuit’s test would not have resulted in a different outcome. The Sixth Circuit requires the petitioner to show that “a substantial question ex- ists over an issue requiring expert testimony for its resolution and the defendant's position cannot be fully developed without professional assistance.” /d (quoting Wright v. Ange- dome, 151 F 3d 161, 163 (4th Cir. 1998)). Here, the Fifth Circuit essentially determined that there was no substantial question regarding the prejudice prong of Strickland and, there- fore, no need for funding. Pet. App. All; see also Foley, 835 F 3d at 564 (finding no need to hire a neuropsychologist when the petitioner's arguments “have consistently been found to be without merit”). Under the ctreumstances of this case, then, the difference in language between the Fifth and Sixth Circuits would not have altered the result. * Secand, petitioner cites multspie cases that concern investigative asamtance under 14 US.C. § 3006Ale)(1), which permits courts to authorize investigative or expert funding in criminal cases, Pet. 36-87 (citing United States ». Pitta, 346 F. App’x 339 (Gd Cir. 2008); United States v. Thermon, 413 F 34 752 (8th Cir. 2005); United States v. Parker, 4 F. App'x 111 (2d Cir. 2001); United States v. Brandon, 17 F 3d 409 (1st Cir. 1994)). But § 8006A(eX1) contains mandatory language (a court “shall” authorze funding when it is “necessary for adequate representation”) and appties in an entirely different context-—criminal trial. A court handling a criminal matter could not conclude that a criminal defendant was guilty * For the same reason, the Fourth Circuit’s identical wording of the test also does not present a circuit split. See Wrighd, 151 F 3d at 168. and deny investigative funding. Casee concerning § 3006A are not, therefore, instructive in these collateral habeas arcumstances in which petitioner's claim lacked merit. Third, petitioner cites several district court cases that he claims apply a “good cause” standard for investigative asmetance. Pet. 34. But those cases concern discovery under Rule fia) of the Rules Governing Section 2254 Cases, which allows a judge to authorize discovery in habeas cases for “good cause.” Lee v. /1umphrey, No. CV 510-017, 2013 WL 4482461 (S_D. Ga Aug. 20, 2013); Wilson v. Humphrey, Civil Action No. &10-CV-489, 2011 WL 2709606 (M.D. Ga. July 12, 2011). Those district courts concluded that, absent a threshold determi- nation Ubat good cause exists to conduct discovery, there was no need to fund investigative assistance. Lee, 2013 WL 4482461, at “2; Wilson, 2011 WL 2709696, at *4. Indeed, in Lee, the court found good cause for duscovery but still declined to fund investigative services, demonstrating that the court was not applying a “good cause” standard to § 369%). 2013 WL 448246), at °6-7. The remaining cases ited by petitioner do not establish a circuit split. The Tenth Cir- cuit has simply referred to the language of § 3699(f), Rajem v. Gibson, 246 F 3d 1130, 1139 (10th Cir, 2001), and has elsewhere indicated that it lacks juriadiction over appeais of § 359%(f) decisions, Rojem ». Workman, 656 F 3d 1199, 1202 (10th Cir. 2011). The Ninth Circuit case cited by petitioner concerns when the demual of funds can be reversed and re- quires proof that the lack of funding prejudiced the petitioner. Cooper v. Calderon, 265 F 3d 1104, 1112 (9th Cir. 2001). There is no reason to conclude that the Ninth Circuit would re- quire funding of meritless ciaims. Finally, the Seventh Circnit requires a “preliminary showing” before funding may be authorized, Burris vu. Parke, 180 F.3d 782, 784 (7th Cir. 1997), but there is no indication that a determination that an underlying claun lacks merit would still result in funding. B. Petitioner’s funding claim also faces jurisdictional and statutory obstacles. |. To reach the second question presented, the Court would have to confront the pred- icate question whether there is appellate jurisdiction over appeals of Une Genial of funding under § 2699(f). See Liberty Mut. Ina Co. v Wetzel, 424 U.S. 737, 740 (1976) (stating that the Court has an obligation to question its own appellate jurisdiction) Sectuon 3599 closely cirenmscribes the review available for funding determinations and does not itself provide for appellate review of the denial of funda. 18 U.S.C. § 359%), (gX2Z). Congress haz granted courts of appeals juriediction to review “final decisions” of the district courts. 28 U.S.C. § 1291. The courts of appeals, however, have held that § 1291 “nec- essarily refers to final decisions of a judicial character, not to admimistrative actions. . outside the scope of the litigative function.” /n re Baker, 693 F 2d 926, 926-27 (9th Cir. 1982); see, e.g., Wilkins v. Davis, 832 F 3d 647, 568-59 (Sth Cir. 2016); In re Pickett, 842 F 2d 998, 996 (8th Cir. 1988); Bense v. Starting, 719 F 2d 241, 244 (7th Cir. 1988). Thus, for example, the courte af appeals are unanimous that fee determinations made under the Criminal Jus- tice Act (18 U.B.C. § S006A) are administrative acts not reviewable under $ 1291. United States vu. French, 556 F 3d 1091, 1092 (10th Cir. 2009) (“Every circuit court of appeals to consider this -urtsdictional question has held that CJA fee compensation determinations made by the district court are not appealabie.”); Landano vu. Rafferty, 868 F 24 301, 302 0.2 (3d Cir. 1988) (per curiam) (“The provision for limited review by the Chief Judge of the Ctreuit of vouchers approved by a district judge may be read to exclude by negative impli- cation other forms of review of district jucige action”) 27 Section 3699 is a “spin( | off” of the CJA, Martel, 122 S. Ct. at 1285, and provides for a similar process Lo review funding decisions. Accordingly, § 3599 should read im pari mate- via with the CJA. See United States v. Stewart, 311 US. 60, 64 (1940). This interpretive orinctple is especially applicable woen, as here, the two statutes adopt a single consistent vocabulary in reference to the same subject matter. Compare 18 U.S.C. § 3006A(eX(3), wth ul § 359% g)(2). If CJA funding determinations are not appealable, then it follows that $ 3500 funding determinations, which were modeled after the CJA, are also not appeala- ble” The Tenth Cireuit reached thie very conclusion. In Rojem, the district court denied a funding request for investigative assistance under § 3599 because it “determined the re- quested arncunta were not reasonably necessary for the matter then before u.” 655 F.3d at 1202. The Tenth Circuit dismimsed the petitioner's appeal of this decision, conciuding that \t was no different than a dispute over a CJA fee determination, which ix administrative and not reviewable. /d l’or the same reason, appellate courts lack jurwdiction to review funding decisions under § 3609(f). At the very least, it is an issue the Court will have to confront and resolve before reaching the second question presented. 2. Petitioner’s arguments are premised on the notion that Martinez and Trevrno have opened the door to investigation and discovery in the federal habeas context when the cause for a procedural default is the ineffective assistance of state habeas counsel Pet. 38-39. But Notably, Congress enacted the iaw currently codified in § 3609 in 1968 (Martel, 182 S. Ct. at 1284; Pub. L. 100-690, 102 Stat. 4181 (Nov. 18, 1988)), after several circuits had held that fee determinations under the nearly identical § 3006A were not appealable See, ¢9., Landano, 869 F 2d at 302; United States v. Rodrigues, 833 F.2d 1536, 1537-38 (11th Cir. 1987) (per curiam). § 2254(e)(2), he will be unable to introduce his new evidence in court, rendering any further investigation futile. C. The Fifth Circuit did not err in concluding that petitioner's ineffective- assistance claim lacked merit. Finally, there was no error in the Fiftr Circuit’s conclusion that petitioner's ineffective- assistance of-trial-counsel claim failed on the merits. The court assumed arguendo that pe- ttioner could prove that he was addicted to drugs and aleohol at the time of the murder and that he was in the early stages of schizophrenia, but still concluded that the jury likely would have sentenced him to death regardiess. Although respondent has not seen petitioner’s sealed ex parte § 3599(f) motuon (Pet. App. G) and cannot therefore comment on it specifically, petitioner's briefing identifies a few topics on which he seeks further investigation.’ First, much af his information eppears to be dertved from family members—the very individuals that petitioner affirmatively toid ois trial counsel not to contact. Pet. 29-30. As the state courta, district court, and Fifth Cir- cuit have held, it is not ineffective assistance to follow a client's wishes with regard to miti- gation evidence. See Schriro, 560 UB. at 476 (“If Landrigan issued such an instruction {not Lo present mitigating evidence), counsel's failore to investigute further could not have been prejudicial under Strickland.”); Taylor v. Horn, 604 F 34 416, 455 (3d Cir. 2007). Further, some of the testimony petitioner now seeks to investigate appears comirary to tbe evidence uncovered by state babeas counsel. Compare Pet. 29 (referring to evidence of “ Respondent preserves al) atgumcmts Wa. could be sade based on the contents of this sealed ex parte 4 3590(f) motion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0764%3A03. Public record. Not legal advice.