In The Supreme Court of the United States

No. 14-276 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- CHRISTOPHER CHUBASCO WILKINS, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. --------------------------------- --------------------------------- On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit --------------------------------- --------------------------------- AMICUS CURIAE BRIEF OF THE CAPITAL PUNISHMENT CENTER OF THE UNIVERSITY OF TEXAS SCHOOL OF LAW IN SUPPORT OF THE PETITIONER --------------------------------- --------------------------------- JIM MARCUS* JORDAN M. STEIKER RAOUL D. SCHONEMANN CAPITAL PUNISHMENT CENTER THE UNIVERSITY OF TEXAS SCHOOL OF LAW 727 East Dean Keeton Street Austin, TX 78705 (512) 232-1475 JMarcus@law.utexas.edu JSteiker@law.utexas.edu RSchonemann@law.utexas.edu Attorneys for Amicus Curiae * Counsel of Record ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 4 I. Federal habeas counsel has a duty to adequately investigate every potentially meritorious claim before filing an initial application... 4 II. The Fifth Circuit s rule that a petitioner cannot show a substantial need for funding when a claim is procedurally defaulted shackles federal habeas counsel s ability to develop and present claims that are subject to federal review under this Court s decisions... 8 A. In the Fifth Circuit, Section 3599 funding is categorically unavailable for procedurally defaulted or unexhausted claims... 9 B. The Fifth Circuit s rule is inappropriate given statutory and equitable rules that permit review of procedurally defaulted and unexhausted claims... 12

ii TABLE OF CONTENTS Continued Page C. The Fifth Circuit s rule thwarts review of procedurally viable claims by denying the services reasonably necessary to establish the factual basis for overcoming a default... 15 D. The denial of preapplication services necessary to develop substantial ineffective assistance of counsel claims is especially problematic in light of well-documented deficiencies in Texas capital postconviction representation... 22 CONCLUSION... 25

iii TABLE OF AUTHORITIES Page CASES Banks v. Dretke, 540 U.S. 668 (2004)... 13, 14 Carty v. Thaler, 583 F.3d 244 (5th Cir. 2009)... 15 Crutsinger v. Stephens, No. 12-70014, 2014 WL 3805464 (5th Cir. Aug. 4, 2014)... 10, 15, 16, 21 Crutsinger v. Thaler, No. 4:07-CV-703-Y, 2012 WL 369927 (N.D. Tex. Feb. 6, 2012)... 20 Engle v. Isaac, 456 U.S. 107 (1982)... 14 Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011)... 24 Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997)... 10, 11 Goff v. Johnson, No. 4:98-CV-563-A (N.D. Tex. Jan. 19, 1999)... 18 Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006)... 13 Green v. Cockrell, 67 F. App x 248 (5th Cir. 2003)... 10 Gutierrez v. Quarterman, 201 F. App x 196 (5th Cir. 2006)... 12 Guy v. Cockrell, 343 F.3d 348 (5th Cir. 2003)... 15, 21 Harbison v. Bell, 556 U.S. 180 (2009)... 15 Hines v. Cockrell, No. 3:99-CV-0575-G, 2001 WL 1661670 (N.D. Tex. Dec. 26, 2001)... 11 House v. Bell, 547 U.S. 518 (2006)... 14, 25 House v. Bell, 276 F. App x 437 (6th Cir. 2008)... 14

iv TABLE OF AUTHORITIES Continued Page Mamou v. Stephens, Civ. No. H-14-403, 2014 WL 4274088 (S.D. Tex. Aug. 28, 2014)... 16 Maples v. Thomas, 132 S. Ct. 912 (2012)... 13 Martel v. Clair, 132 S. Ct. 1276 (2012)... 5, 6, 25 Martinez v. Dretke, No. 4:04-CV-728-A (N.D. Tex. June 8, 2005)... 18 Martinez v. Ryan, 132 S. Ct. 1309 (2012)... passim Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000)... 8 McCleskey v. Zant, 499 U.S. 467 (1991)... 7 McFarland v. Scott, 512 U.S. 849 (1994)... passim Murray v. Carrier, 477 U.S. 478 (1986)... 14 Patrick v. Johnson, 48 F. Supp. 2d 645 (N.D. Tex. 1999)... 11 Perkins v. Quarterman, No. 4:06-CV-687-A (N.D. Tex. Sept. 29, 2006)... 18 Powers v. Epps, No. 2:07-CV-20HTW, 2009 WL 901896 (S.D. Miss. Mar. 31, 2009)... 10 Rhines v. Weber, 544 U.S. 269 (2005)... 15 Riley v. Dretke, 362 F.3d 302 (5th Cir. 2004)... 10, 11 Schlup v. Delo, 513 U.S. 298 (1995)... 3 Shelton v. Heard, 696 F.2d 1127 (5th Cir. 1983)... 15 Smith v. Dretke, 422 F.3d 269 (5th Cir. 2005)... 12 Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995)... 10 Strickler v. Greene, 527 U.S. 263 (1999)... 16

v TABLE OF AUTHORITIES Continued Page Trevino v. Thaler, 133 S. Ct. 1911 (2013)... passim Wainwright v. Sykes, 433 U.S. 72 (1977)... 3 Williams v. Taylor, 529 U.S. 420 (2000)... 13 STATUTES 18 U.S.C. 3599... passim 18 U.S.C. 3599(d)... 5 18 U.S.C. 3599(f)... 5 28 U.S.C. 2244(b)... 8 28 U.S.C. 2244(d)... 8 28 U.S.C. 2254(b)(1)(B)(ii)... 15 28 U.S.C. 2254(b)(3)... 15 RULES Sup. Ct. R. 37.2(a)... 1 OTHER AUTHORITIES American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913 (2003)... 7, 8 Asifa Quraishi, Federal Judicial Center, Resource Guide for Managing Capital Cases (rev. ed. 2010)... 8

vi TABLE OF AUTHORITIES Continued Page Chuck Lindell, Sloppy Lawyers Failing Clients On Death Row, Austin American-Statesman, Oct. 29, 2006... 24 Maurice Possley, National Registry of Exonerations: Anthony Graves, Michigan Law and Northwestern Law (2012), http://www.law.umich. edu/special/exoneration/pages/casedetail.aspx? caseid=3253... 13 Paul House, Innocence Project, http://www. innocenceproject.org/content/paul_house.php (last visited Oct. 8, 2014)... 14 Senate Research Center, Bill Analysis, Tex. S.B. 1091, 81st Leg., R.S. (Aug. 11, 2009) (available at http://tinyurl.com/pjlszdu)... 23 State Bar of Texas Task Force on Habeas Counsel Training and Qualification, Task Force Report (Apr. 27, 2007) (available at http://tinyurl.com/lx7yl5b)... 24 TREATISES Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (6th ed. 2011)... 5, 6, 7

1 INTEREST OF AMICUS CURIAE 1 This amicus curiae brief is submitted by the Capital Punishment Center at the University of Texas School of Law ( the Center ). The Center was established in 2006 to promote research and training in death penalty law. The Center sponsors symposia and academic events; pursues research projects concerning the administration of the death penalty, particularly in Texas; provides training and assistance to Texas lawyers involved in capital cases; and houses the Capital Punishment Clinic, which has provided direct representation and assistance to indigent prisoners on Texas s death row since 1987. The Center s interest in this case arises from our efforts to guide and assist federal habeas counsel in Texas as they investigate and develop claims of ineffective assistance of trial counsel following this Court s decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). Those cases hold that a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding... counsel in that 1 No counsel for a party authored this brief in whole or in part, and no person or entity other than the amicus and its counsel made any monetary contribution intended to fund the preparation or submission of this brief. Counsel of record for both parties received timely notice, under Sup. Ct. R. 37.2(a), of the intent to file this brief. Letters confirming both parties consent to the filing of this brief have been submitted to the Clerk.

2 proceeding was ineffective. Trevino, 133 S. Ct. at 1921 (quoting Martinez, 132 S. Ct. at 1320). Given well-documented problems with the administration of the Texas state postconviction system in the era in which this case was adjudicated, the default of a substantial claim of ineffective assistance of trial counsel is not uncommon. As this Court recognized in Trevino, a meaningful opportunity to develop and present such a claim requires adequate time and resources. Trevino, 133 S. Ct. at 1919. However, federal habeas counsel s ability to identify and develop the factual basis for such a claim is thwarted by precedent pre-dating Martinez and Trevino that bars investigative and expert services for development of claims that are subject to a procedural default. This Court s intervention is necessary to ensure that Texas federal habeas petitioners are not deprived of review of their bedrock right to effective assistance of counsel at trial. --------------------------------- --------------------------------- SUMMARY OF ARGUMENT Investigating all potentially meritorious claims for relief before the limitations period expires is a fundamental duty of federal habeas counsel. This Court recognized Congress s intention to provide adequate representation to death-sentenced prisoners and construed 18 U.S.C. 3599 accordingly. However, counsel who practice in the United States Court of Appeals for the Fifth Circuit ( Fifth Circuit ) are frequently incapable of carrying out this basic

3 responsibility because that court has ruled that 3599 funding is unavailable to investigate and present procedurally defaulted or unexhausted claims, despite the multiple ways such defaults might be overcome. While this Court s federal habeas corpus jurisprudence protects states from unwarranted interference with the finality of their criminal convictions, it also includes narrow but critical safety valves that allow federal courts to correct fundamentally unjust convictions and sentences. For example, this Court has held that petitioners can overcome a procedural default by (1) showing cause for the default and prejudice from the underlying constitutional violation, Wainwright v. Sykes, 433 U.S. 72, 90 91 (1977); or (2) demonstrating that the failure to hear the claim would result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 314 15 (1995). Also, this Court recently recognized an equitable exception to the procedural default rule, whereby ineffective representation at an initial-review collateral proceeding, like the state habeas corpus proceeding in Texas, may establish cause to excuse the default of a substantial claim of ineffective assistance of trial counsel. Martinez, 132 S. Ct. at 1320; Trevino, 133 S. Ct. at 1918 19. The requirements for overcoming procedural defaults embody a judgment about when the equities of a case compel federal court review despite procedural defects. The denial of funding to investigate this class of claims is especially disquieting because of the significant risk that, despite

4 circumstances that compel federal review, challenges to a fundamentally flawed conviction will be barred because of the prisoner s indigence. The efficacy of these safeguards depends entirely on the availability of adequate legal representation and resources to investigate each case. Some deathsentenced prisoners like Delma Banks or Paul House, each of whom received relief on ostensibly defaulted claims are represented by pro bono counsel and/or federal defenders with the resources necessary to provide adequate representation. Most others are dependent upon court-appointed counsel and court-ordered funding for investigative and expert services. Thus, federal habeas safety valves, including those announced in Martinez and Trevino, may be rendered inoperative for many indigent deathsentenced prisoners in the Fifth Circuit. This Court s intervention is necessary to enable court-appointed counsel to provide the adequate representation essential to a fundamentally fair system of capital punishment. --------------------------------- --------------------------------- ARGUMENT I. Federal habeas counsel has a duty to adequately investigate every potentially meritorious claim before filing an initial application. Congress authorizes federal courts to provide adequate legal representation and necessary resources

5 to death-sentenced state prisoners in federal habeas corpus proceedings: The legislation now known as 3599... grants federal capital defendants and capital habeas petitioners enhanced rights of representation, in light of what it calls the seriousness of the possible penalty and... the unique and complex nature of the litigation. Martel v. Clair, 132 S. Ct. 1276, 1284 85 (2012) (quoting 18 U.S.C. 3599(d)). [T]he statute aims in multiple ways to improve the quality of representation afforded to capital petitioners and defendants alike. Id. at 1285. Thus, the statute requires lawyers in capital cases to have more legal experience than lawyers in non-capital cases; authorizes higher rates of compensation, in part to attract better counsel ; and provides more money for investigative and expert services. Id. These measures reflec[t] a determination that quality legal representation is necessary in all capital proceedings to foster fundamental fairness in the imposition of the death penalty. Id. (quoting McFarland v. Scott, 512 U.S. 849, 855 (1994)). The most common habeas corpus claims require extra-record fact investigation, 2 and federal courts are authorized to provide funding for investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence. 18 U.S.C. 3599(f). Fact-development 2 See generally 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 11.2[c] (6th ed. 2011).

6 resources are necessary because the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant s habeas claims. McFarland, 512 U.S. at 858. Factual investigation is so fundamental to federal habeas corpus representation that appointed counsel s refusal to conduct an appropriate investigation into matters not previously developed may justify his removal and replacement. Martel, 132 S. Ct. at 1288 (explaining that a motion to substitute counsel alleging that an attorney refused to investigate... newly located physical evidence potentially supporting a Brady claim, an ineffective assistance of trial counsel claim, and actual innocence ordinarily requires a court to conduct further inquiry into the appropriateness of the motion). Preapplication investigation is essential in our federal habeas scheme because doctrines of waiver and abuse of the writ make it especially important that the first petition adequately set forth all of a state prisoner s colorable grounds for relief. McFarland, 512 U.S. at 860 (O Connor, J., concurring). Thus, authorities of every stripe recognize the need for such investigation into all potentially meritorious claims: The need for comprehensive investigation and pleading of claims arises... because [the Antiterrorism and Effective Death Penalty Act ( AEDPA )] severely limits the range of successive petitions that can succeed. Hertz & Liebman, supra, note 2 at 11.3. See also id. at 11.2 (emphasizing the importance of discovering meritorious claims in

7 the case as early as possible ); American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.8 (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1028 (2003) [hereinafter ABA Guidelines ] (requiring [c]ounsel at every stage of the case to (1) consider all legal claims potentially available; and (2) thoroughly investigate the basis for each potential claim before reaching a conclusion as to whether it should be asserted ); McCleskey v. Zant, 499 U.S. 467, 498 (1991) (stating that a petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition ). Furthermore, given the myriad ways potentially defaulted claims can receive merits review, see infra Sec. II.B., [c]ounsel should proceed cautiously before deleting an otherwise meritorious claim from a petition based on procedural default or waiver grounds. Hertz & Liebman, supra, note 2 at 11.3. See also ABA Guidelines 10.15.1 at 1079 (stating that habeas counsel must litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation and make every professionally appropriate effort to present issues in a manner that will preserve them for subsequent review ). A claim omitted from a timely habeas application will almost certainly be barred by the statute of

8 limitations 3 or the strict rules governing subsequent applications. 4 ABA Guidelines 10.15.1 at 1086 n.352 (citing Mason v. Meyers, 208 F.3d 414, 417 (3d Cir. 2000) for the proposition that as a result of the strict rules governing successive habeas corpus petitions enacted by the AEDPA and codified at 28 U.S.C. 2244(b), it is essential that habeas petitioners include in their first petition all potential claims for which they might desire to seek review and relief ). II. The Fifth Circuit s rule that a petitioner cannot show a substantial need for funding when a claim is procedurally defaulted shackles federal habeas counsel s ability to develop and present claims that are subject to federal review under this Court s decisions. Given federal habeas counsel s duties to identify and adequately set forth all of a state prisoner s colorable grounds for relief, the provision of investigative, expert or other services... reasonably necessary for the representation of the defendant... must be available prior to the filing of a first habeas petition. McFarland, 512 U.S. at 860 (O Connor, J., concurring) (emphasis added). See also 2 Asifa Quraishi, Federal Judicial Center, Resource Guide for Managing Capital Cases 10 (rev. ed. 2010) ( Because 3 4 See 28 U.S.C. 2244(d). See 28 U.S.C. 2244(b).

9 of the importance of the first petition, judges can expect counsel to request significant time and expense in preparation of that petition, especially if they are new to the case. ). However, pursuant to Fifth Circuit case law, courts routinely withhold preapplication services reasonably necessary to develop and adequately plead claims potentially subject to a procedural default. This categorical withholding is contrary to federal statute and the decisions of this Court, both of which delineate circumstances in which federal courts should review procedurally defaulted or unexhausted claims. Further, because the factual basis necessary for overcoming a procedural bar is often at least partially coextensive with the undeveloped claim, the denial of necessary services also stymies a litigant s ability to demonstrate that the court should reach the merits of that claim. The net effect is to shield from scrutiny the most fundamental flaws in capital cases. This Court s review is imperative to ensure that the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant s habeas claims. McFarland, 512 U.S. at 858. A. In the Fifth Circuit, Section 3599 funding is categorically unavailable for procedurally defaulted or unexhausted claims. In McFarland, this Court recognized that the services of investigators and other experts may be

10 critical in the preapplication phase of a habeas corpus proceeding, when possible claims and their factual bases are researched and identified. McFarland, 512 U.S. at 855 (emphasis added). Yet, since McFarland, the Fifth Circuit has concluded that 3599 funding is categorically unavailable for procedurally defaulted or unexhausted claims. Shortly after McFarland, the Fifth Circuit held that funding is not available to pay federally appointed counsel to exhaust claims in state court. See Sterling v. Scott, 57 F.3d 451, 458 (5th Cir. 1995) ( Sterling has no right to appointed and paid counsel under 848(q)(4)(B) for the purpose of exhausting his state postconviction claims. ). Subsequently, in Fuller v. Johnson, the court upheld the denial of expert assistance for an evidentiary hearing because the testimony would have been barred. 114 F.3d 491, 502 (5th Cir. 1997). See also Green v. Cockrell, 67 F. App x 248, at *3 (5th Cir. 2003) ( To demonstrate that assistance is reasonably necessary, a defendant must couple his request with a viable constitutional claim that is not procedurally barred. ). The rule bars funding to develop procedurally defaulted claims: A petitioner cannot show a substantial need when his claim is procedurally barred from review. Crutsinger v. Stephens, No. 12-70014, 2014 WL 3805464, at *6 (5th Cir. Aug. 4, 2014) (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004)). See also Powers v. Epps, No. 2:07-CV-20HTW, 2009 WL 901896, at *2 (S.D. Miss. Mar. 31, 2009) ( A petitioner cannot show a substantial need for investigative services to support

11 claims that are procedurally barred. ) (citing Fuller, 114 F.3d at 502). While neither Riley nor Fuller involved preapplication funding requests, subsequent cases invoked Fuller as a bar against funding for investigating and pleading previously undeveloped or unavailable claims in federal habeas proceedings. In Patrick v. Johnson, the district court rejected a request for investigative and expert assistance to develop unexhausted ineffective assistance of counsel claims for an amended federal petition. 48 F. Supp. 2d 645, 646 47 (N.D. Tex. 1999). The court acknowledged that the case is one-step removed from those authorities involving the use of federal funds to pursue unexhausted claims. Here, petitioner requests compensation for an investigator and two experts to aid in the development of a claim that was not raised in either state court or federal court. Id. Citing Fuller, the court held that the petitioner was not entitled to the appointment of an investigator or expert to explore claims which are procedurally barred. Id. at 647. See also Hines v. Cockrell, No. 3:99-CV-0575-G, 2001 WL 1661670, at *2 (N.D. Tex. Dec. 26, 2001) ( Even where a petitioner has established a nexus between the investigative or expert services and habeas claims of a constitutional dimension, some courts have refused to sanction funding where the claims or proposed claims are procedurally barred or where the claim itself would be futile. ) (citing Fuller, 114 F.3d at 502; Patrick, 48 F. Supp. 2d at 647).

12 The Fifth Circuit has consistently sustained the withholding of preapplication services necessary to develop claims that may be subject to a procedural bar. See, e.g., Gutierrez v. Quarterman, 201 F. App x 196, 207 08 (5th Cir. 2006) (affirming the denial of preapplication funding to investigate, inter alia, dueprocess violations for a possible undisclosed agreement between a prosecution witness and the State, and the suppression of impeachment evidence relating to a prosecution witness because [t]his court has upheld the denial of such funding when a petitioner has [ ] failed to supplement his funding request with a viable constitutional claim that is not procedurally barred ) (citing Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005)). B. The Fifth Circuit s rule is inappropriate given statutory and equitable rules that permit review of procedurally defaulted and unexhausted claims. The identification and development of defaulted or unexhausted claims in federal habeas proceedings is not a futile gesture in every case. There are myriad circumstances in which petitioners may overcome procedural defects and prevail on defaulted or unexhausted claims. While most defaulted claims will be barred, the number of cases in which the default is excused is significant. The requirements for overcoming a default or lack of exhaustion embody a judgment that in some cases the equities compel federal court review despite procedural defects. The denial of

13 funding to investigate this entire class of claims is especially disquieting because of the significant risk that, despite circumstances that warrant federal review, challenges to a fundamentally flawed conviction will be barred because of a prisoner s indigence. A petitioner can overcome a procedural default by demonstrating cause and prejudice. See, e.g., Maples v. Thomas, 132 S. Ct. 912, 917 (2012) (finding cause when state habeas attorneys abandoned the client); Williams v. Taylor, 529 U.S. 420, 443 (2000) (finding cause when a juror failed to disclose her relationship with a key witness); Graves v. Dretke, 442 F.3d 334, 339 n.3 (5th Cir. 2006) (reaching merits based on the prosecution s suppression of evidence) and 344 45 (granting habeas relief). 5 Banks v. Dretke is an example of a case in which demonstrating cause and prejudice... at the same time succeed[ed] in establishing the elements of [a] Brady death penalty due process claim. 540 U.S. 668, 691 (2004). In Banks, the state persisted in hiding [an] informant[ s] status and misleadingly represented that it had complied in full with its Brady disclosure obligations throughout trial and state postconviction proceedings. Id. at 693. This Court rejected the state s arguments that the prosecution can lie and conceal 5 Graves was subsequently exonerated and released. Maurice Possley, National Registry of Exonerations: Anthony Graves, Michigan Law and Northwestern Law (2012), http://www. law.umich.edu/special/exoneration/pages/casedetail.aspx?caseid= 3253.

14 and the prisoner still has the burden to... discover the evidence, id. at 696, and held that Banks had demonstrated both cause and prejudice for the default and grounds for habeas relief. Id. at 698 703. The fundamental miscarriage of justice exception to the procedural default rule recognizes that the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration. House v. Bell, 547 U.S. 518, 536 (2006) (quoting Murray v. Carrier, 477 U.S. 478, 495 (1986) and Engle v. Isaac, 456 U.S. 107, 135 (1982)) (internal quotation marks omitted). This Court concluded that new evidence developed in House s federal habeas proceedings established a compelling claim of actual innocence, and thus the state procedural default rule [was] not a bar to a federal habeas corpus petition. Id. at 522. On remand, House received habeas relief. House v. Bell, 276 F. App x 437, 437 38 (6th Cir. 2008). The prosecution subsequently dropped all charges and House was released from prison after 22 years on death row. Paul House, Innocence Project, http://www.innocenceproject.org/content/paul_house. php (last visited Oct. 8, 2014). Apart from the cause and prejudice and miscarriage of justice exceptions, at least four other avenues permit review of unexhausted or procedurally defaulted claims, including: (1) obtaining a stay of

15 the federal proceedings to exhaust state court remedies; 6 (2) obtaining a waiver of the exhaustion requirement by the state; 7 (3) obtaining a waiver of the procedural default by the state; 8 or (4) demonstrating circumstances exist that render [the State corrective] process ineffective to protect the rights of the applicant. 9 All of these avenues are closed, however, to indigent petitioners who are denied the necessary preapplication services to investigate and properly plead claims in federal court. C. The Fifth Circuit s rule thwarts review of procedurally viable claims by denying the services reasonably necessary to establish the factual basis for overcoming a default. The merits of a defaulted claim and the factual basis for showing cause, prejudice, or a miscarriage of justice are often intertwined. See, e.g., Martinez, 132 S. Ct. at 1320 ( A procedural default will not bar a 6 Rhines v. Weber, 544 U.S. 269, 277 (2005). Federal district courts have the discretion to compensate counsel for exhausting claims in state court. Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009). 7 See 28 U.S.C. 2254(b)(3). See, e.g., Carty v. Thaler, 583 F.3d 244, 257 (5th Cir. 2009); Guy v. Cockrell, 343 F.3d 348, 351 (5th Cir. 2003). 8 See, e.g., Crutsinger, 2014 WL 3805464, at *3. 9 See 28 U.S.C. 2254(b)(1)(B)(ii). See, e.g., Shelton v. Heard, 696 F.2d 1127, 1128 29, on reconsideration, 707 F.2d 200 (5th Cir. 1983).

16 federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding,... counsel... was ineffective. ) (emphasis added); Strickler v. Greene, 527 U.S. 263, 282 (1999) ( Cause and prejudice parallel two of the three components of the alleged Brady violation itself : suppression constitutes... cause [ ] for the failure to assert a Brady claim, and materiality for Brady purposes is sufficient prejudice to overcome the procedural default ). Prohibiting funding to adequately develop such claims thus denies a petitioner the opportunity to overcome a default. The Fifth Circuit s rule is a potentially insurmountable obstacle to habeas petitioners with claims of trial ineffectiveness that were not exhausted due to ineffective representation by state postconviction counsel. See, e.g., Crutsinger, 2014 WL 3805464, at *8 (upholding the denial of preapplication funding because Martinez... does not mandate pre-petition funding, nor does it alter our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from review ); Mamou v. Stephens, Civ. No. H-14-403, 2014 WL 4274088, at *1 (S.D. Tex. Aug. 28, 2014) ( [F]unds are not reasonably necessary to develop claims for which federal habeas review is unavailable.... [T]his includes claims that are not exhausted... [and] claims that are procedurally barred. ). This is precisely what happened to Wilkins. Wilkins s pro bono federal habeas counsel researched the case and discovered numerous red flags

17 strongly indicative of ineffective lawyering at trial and in state postconviction proceedings. For example, trial counsel was aware of but did not investigate Wilkins s neuropsychological deficits, and presented inaccurate testimony about the potential for placing Wilkins in a low-level security setting if given a life sentence. See Petition for Writ of Certiorari at 11, Wilkins v. Stephens, No. 14-276 (Sept. 9, 2014). And, although state postconviction counsel convinced the state courts that the services of a mitigation specialist and a psychologist were reasonably necessary in Wilkins s case, counsel never hired them. Id. at 8. Federal habeas counsel identified Martinez as an appropriate vehicle for litigating these issues in federal court and sought to comply with her duty to investigate them. Id. at 12. Wilkins filed a motion for the necessary services in which he alleged: many factors... present in Petitioner s past that would be conducive to brain damage: head injuries, huffing of inhalants, ingestion of toxic industrial chemicals, use of a wide range of drugs including cocaine and methamphetamines, and possible exposure to LSD while a baby. A full neuropsychological evaluation was recommended by the defense psychologist, which would have required a continuance. That path was not pursued, and no mental health evidence was presented to the jury.

18 Application at 9 10, Wilkins v. Stephens, No. 12-CV- 270 (N.D. Tex. May 25, 2012) (emphasis added). Wilkins sought the services of a neuropsychologist and provided the court with a detailed estimate of the work to be done. Before Wilkins filed his request, he sought leave to file it ex parte. The district court chided him for disregard[ing]... the constraints of a federal petition for writ of habeas corpus... including the prohibition against raising unexhausted grounds in a federal petition for habeas corpus under 2254. Order at 5, Wilkins, No. 12-CV-270 (May 3, 2012) (emphasis added). The court then summarily denied this and other similarly well-documented requests for reasonably necessary services, stating that it was unable to find... that the requested... services are reasonably necessary. Pet. App. at 73a. 10 The district court subsequently held that Wilkins s ineffectiveness 10 In capital cases since his decision was overturned in McFarland, Judge McBryde has consistently enforced severe and idiosyncratic limitations on counsel s representation including, inter alia, denying funding for investigation or experts because petitioners are not authorized to present any grounds for relief that had not been exhausted in state court. Order, Goff v. Johnson, No. 4:98-CV-563-A (N.D. Tex. Jan. 19, 1999) (denying funding request for investigator). See also Order, Perkins v. Quarterman, No. 4:06-CV-687-A (N.D. Tex. Sept. 29, 2006) (appointing and instructing counsel to present only grounds for relief exhausted in state court); Memorandum Opinion and Order at 3, Martinez v. Dretke, No. 4:04-CV-728-A (N.D. Tex. June 8, 2005) (reiterating that counsel was appointed to raise only claims exhausted in state court).

19 claims were procedurally barred, Pet. App. at 50a, and he could not show cause under Martinez because he would also have to show the merits of his underlying claims in order to overcome a procedural default. Pet. App. at 56a. Wilkins fell short because he failed to provide any evidence as to what his trial counsel would have discovered by further investigation, or that the investigation done by trial counsel was, in fact, inadequate. Id. at 59a. Affirming the district court, the Fifth Circuit faulted Wilkins for fail[ing] to state any substantial [ineffective assistance of trial counsel] claims. Pet. App. at 12a. The court repeatedly emphasized the absence of evidence to support Wilkins s allegations. Id. at 16a ( None of these conclusory allegations are sufficient to merit relief under Strickland. ); id. at 25a ( Wilkins offered no support to the district court that his actions are the result of brain damage and mental health problems. ); id. at 26a ( Wilkins has failed to show any prejudice resulting from [trial counsel] s purportedly deficient performance in conducting the pretrial investigation. ). Because Wilkins was denied the services to investigate and develop his claims, he also failed to establish cause for his procedural default under Martinez because none of the underlying [ ] claims [were] substantial as required by Martinez. Id. at 30a. As this case illustrates, Martinez becomes a dead letter if petitioners are denied services reasonably necessary to develop unexhausted claims. Martinez rests on the principle that petitioners who have twice

20 been denied effective representation should have a federal forum to litigate trial ineffectiveness, but the Fifth Circuit rule insists that the failure to develop an ineffectiveness claim in state court is reason enough to deny any further investigation essential to plead such a claim. Crutsinger provides another illustration of the problem. Crutsinger filed several motions seeking preapplication funding to develop an unexhausted ineffectiveness of trial counsel claim. Order, Crutsinger v. Stephens, No. 07-CV-703, slip op. at 1 (N.D. Tex. May 21, 2008). The district court noted the tragic circumstances that appear to have been all too common in the post-conviction investigation and presentation of habeas corpus claims, namely the failure of... counsel to raise those claims in the state-court proceedings. Id. The court denied funding to develop the claim because the required showing [under 3599] cannot be made when the claim sought to be investigated is procedurally barred from review. Id. at 2. The petitioner nonetheless pled the ineffectiveness claim, albeit without the benefit of preapplication resources necessary to develop it. The state did not assert a procedural bar based on the failure to exhaust, and the Court [did] not... apply a procedural bar sua sponte. Crutsinger v. Thaler, No. 4:07-CV-703-Y, 2012 WL 369927, at n.5 (N.D. Tex. Feb. 6, 2012). Instead, the court denied relief on the merits, repeatedly pointing to the absence of proof for Crutsinger s allegations. Id. at *6 10.

21 The Fifth Circuit denied a certificate of appealability because Crutsinger had not explained what the additional investigation he request[ed] would reveal nor how it would have changed the result of his trial and sentence. Crutsinger, 2014 WL 3805464, at *5. The Fifth Circuit also declined to find fault with the district court s reliance on our wellestablished rule... denying funding to investigate a claim that would be procedurally barred from review, id. at *7, even though no default was applied to the claim. The Fifth Circuit rejected Crutsinger s argument that preapplication funding was necessary to show a substantial claim, reasoning that [b]ecause Crutsinger has failed to show that his claim was substantial, Martinez does not provide excuse for Crutsinger s procedural default. Id. at *8. Like Wilkins, Crutsinger was unable to prevail on the merits or demonstrate that his claim was substantial for Martinez purposes. The Fifth Circuit s bar on funding for defaulted claims deprived him of the reasonably necessary resources to adequately investigate and present his claim. 11 11 Crutsinger reveals another defect in the Fifth Circuit s reflexive rule denying preapplication funding to investigate and substantiate previously undeveloped claims. At the preapplication stage, the state has not invoked a procedural default defense and may not do so. Compare Guy, 343 F.3d at 351 (reaching merits and granting relief notwithstanding potential procedural default) with Crutsinger, 2014 WL 3805464, at *5 8 (reaching merits despite potential default but denying relief because of inadequate fact development).

22 Preapplication investigative and expert services are necessary to substantiate previously undeveloped meritorious claims and overcome any procedural default. Without access to other resources, indigent prisoners are effectively barred from federal habeas review. Contrary to Martinez and Trevino, this ensures that ineffective state habeas representation will foreclose review of potentially meritorious claims of ineffective assistance of trial counsel. D. The denial of preapplication services necessary to develop substantial ineffective assistance of counsel claims is especially problematic in light of welldocumented deficiencies in Texas capital postconviction representation. A rule that denies preapplication services to develop unexhausted ineffective assistance of trial counsel claims will be detrimental to prisoners whose trial and state postconviction counsel were ineffective. Without the necessary investigative and expert services in federal proceedings, these petitioners will be denied adequate counsel a third time. It is particularly lamentable that Texas petitioners are caught in the trap of being unable to access the services necessary to overcome a default because the claim is defaulted. There is near universal agreement that Texas s system of providing capital postconviction counsel was inadequate for many years. Extensive studies, research by the Texas State Bar, and investigative news reports have revealed

23 pervasive flaws in the quality of legal representation for indigent defendants in the state [capital] habeas system. Senate Research Center, Bill Analysis, Tex. S.B. 1091, 81st Leg., R.S., at 1 (Aug. 11, 2009) (available at http://tinyurl.com/pjlszdu). Texas created a new capital habeas representation system, operative since 2010, which includes a statewide public defender agency and new oversight of the lawyers eligible for appointment in capital state habeas cases. Neither Wilkins, nor any of the more than 120 deathsentenced Texas prisoners whose cases are currently pending in a federal court, were beneficiaries of whatever improvements these changes may bring. Every Texas capital habeas litigant currently in federal court, and approximately half of those pending in state court, were processed through the Texas courts under the now-discredited former appointment system. Even judges on the Texas Court of Criminal Appeals ( CCA ), who were responsible for finding capital habeas counsel in the former system, have acknowledged that lawyers routinely failed to provide adequate assistance: Over the past thirteen years that I have been on this Court, I have reviewed numerous 11.071 applications. Some of them have been... poorly pled.... [W]e denied relief, despite the appalling deficiencies.... The applicants in those cases were victims of deficient and inadequate lawyering that was a result of ignorance but not necessarily incompetent.... The outcome in the past has been the same the death-row client s one

24 opportunity to seek habeas relief is lost. This will carry over into the applicant s federal court habeas proceedings, rendering those proceedings meaningless. Ex parte Medina, 361 S.W.3d 633, 647 (Tex. Crim. App. 2011) (Keasler & Hervey, JJ., dissenting). See also State Bar of Texas Task Force on Habeas Counsel Training and Qualification, Task Force Report 8 (Apr. 27, 2007) (available at http://tinyurl.com/lx7yl5b) ( [T]he performance of Texas capital habeas lawyers was neither regulated nor monitored by any court or government agency.... [T]his resulted in a list containing lawyers who were, at best, unqualified to serve as capital habeas counsel and at worst, lawyers who... filed habeas writs copied verbatim from writs filed in other cases, lawyers who filed writs with absolutely no cognizable claims, lawyers who were serving suspensions from the practice of law for neglecting their clients and even lawyers who were deceased. ). The CCA, though aware of the deficient and inadequate lawyering, took no remedial action for more than a decade because it had no mechanism for removing unqualified lawyers from its list. Chuck Lindell, Sloppy Lawyers Failing Clients On Death Row, Austin American-Statesman, Oct. 29, 2006, at A1 ( But even if the judges identified a poorly performing lawyer, they could do little in response. Despite running the court-appointed habeas system for 11 years, the court has established no procedure to remove lawyers from its list[.] ).

25 Given this history, the services of investigators and other experts are all the more critical in the preapplication phase of a [federal] habeas corpus proceeding, when possible claims and their factual bases are researched and identified. McFarland, 512 U.S. at 855. Some Texas prisoners, like Wilkins, have emerged from state postconviction without any adequate investigation into trial counsel s performance. The Fifth Circuit s rule categorically withholding resources to substantiate undeveloped claims will deprive many petitioners of the representation necessary to foster fundamental fairness in the imposition of the death penalty. Martel, 132 S. Ct. at 1285 (quoting McFarland, 512 U.S. at 855). --------------------------------- --------------------------------- CONCLUSION Amicus recognizes that there will be instances in which the denial of funding to continue litigating a procedurally defaulted claim will be within the sound discretion of the district court. But before a court can exercise informed discretion, there must be a claim and the factual record necessary for determining whether the petitioner can overcome any procedural bar. Substantiating an extra-record claim, such as the claim in House v. Bell, may require forensic testing and extensive investigation. Our experience comports with the observation that punishment-phase trial ineffectiveness claims are a particular species of ineffectiveness claim that depend[ ] on time-consuming investigation of personal

26 background and other mitigating circumstances. Trevino, 133 S. Ct. at 1923 (Roberts, C.J., dissenting). Without preapplication investigative and expert services, petitioners will be prevented from presenting a substantial claim for Martinez purposes. As before Martinez and Trevino, state postconviction counsel s ineffectiveness will continue to deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim. Trevino, 133 S. Ct. at 1921. This Court s intervention is essential to ensure that court-appointed counsel receive reasonably necessary resources for adequate federal habeas representation. Respectfully submitted, JIM MARCUS* JORDAN M. STEIKER RAOUL D. SCHONEMANN CAPITAL PUNISHMENT CENTER THE UNIVERSITY OF TEXAS SCHOOL OF LAW 727 East Dean Keeton Street Austin, TX 78705 (512) 232-1475 JMarcus@law.utexas.edu JSteiker@law.utexas.edu RSchonemann@law.utexas.edu Attorneys for Amicus Curiae * Counsel of Record