Ayestas v. Davis, 15-70015

• Decision Date: 31 July 2019
• Docket Number: No. 15-70015,15-70015
• Citation: 933 F.3d 384
• Parties: Carlos Manuel AYESTAS, also known as Dennis Zelaya Corea, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

933 F.3d 384

Carlos Manuel AYESTAS, also known as Dennis Zelaya Corea, Petitioner-Appellant

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

No. 15-70015

United States Court of Appeals, Fifth Circuit.

FILED July 31, 2019

Sheri L. Johnson, Cornell University, School of Law, Ithaca, NY, Lee Benjamin Kovarsky, Esq., University of Maryland Law School, Baltimore, MD, Meaghan McLaine VerGow, O'Melveny & Myers, L.L.P., Washington, DC, for Petitioner-Appellant.

Jason R. LaFond, Office of the Attorney General for the State of Texas, Tina J. Miranda, Assistant Attorney General, Gwendolyn Suzanne Vindell, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellee.

Before SMITH, SOUTHWICK, and HO, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

LESLIE H. SOUTHWICK, Circuit Judge:

Carlos Manuel Ayestas is a prisoner on death row in Texas. We previously affirmed the district court’s denial of his request under 18 U.S.C. § 3599(f) for investigatory funding because he had not shown a "substantial need" that made the funds "reasonably necessary" to the representation. The Supreme Court held the statute does not require a showing of "substantial need" and remanded with instructions to consider only whether funding is "reasonably necessary."

We conclude that investigatory funding is not reasonably necessary because nothing would establish the ineffectiveness of state-habeas counsel, a gateway requirement for him to overcome the procedural default of his claim that his trial counsel was ineffective for failing to present certain mitigating evidence of substance abuse and mental illness. AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Carlos Manuel Ayestas was convicted of murdering Santiaga Paneque, a 67-year-old Houston woman, after he and two accomplices broke into her home one morning. Paneque’s son discovered her body when he returned home for lunch. He testified at sentencing that it had been important to his mother that he become a United States citizen, and that he had wanted her at his naturalization ceremony, which occurred two days after her death. The Texas Court of Criminal Appeals affirmed Ayestas’s conviction and death sentence in 1998; that court denied his application for a writ of habeas corpus in 2008.

We have previously described in detail Ayestas’s federal-habeas proceedings. Ayestas v. Stephens , 817 F.3d 888, 892-94 (5th Cir. 2016), vacated sub nom. Ayestas v. Davis , ––– U.S. ––––, 138 S. Ct. 1080, 200 L.Ed.2d 376 (2018). We explain here some recent developments. In 2014, the district court denied Ayestas’s federal habeas application as well as his ex parte motion for additional investigatory funding pursuant to 18 U.S.C. § 3599(f). With respect to the Section 3599(f) motion, the district court recited then-controlling precedent that Ayestas was required to show a "substantial need" for investigative assistance, as well as the statutory requirement that the assistance be "reasonably necessary" to the representation. See Brown v. Stephens , 762 F.3d 454, 459 (5th Cir. 2014) ; § 3599(f).

The district court then denied multiple post-judgment motions, including some based on a newly discovered "Capital Murder Summary memorandum, prepared by the prosecution, stating that Ayestas’s lack of citizenship was an ‘aggravating circumstance[ ].’ " Ayestas , 817 F.3d at 894. On appeal, we affirmed the denial of Ayestas’s motions for investigatory funding, to stay proceedings to allow exhaustion of new claims in state court, and to supplement his habeas application with new evidence. Id. at 892. We also denied Ayestas’s request for a certificate of appealability to appeal the denial of his habeas application. Id.

The Supreme Court granted certiorari on the denial of investigatory funding under Section 3599(f), then vacated and remanded for further proceedings. Ayestas , 138 S. Ct. 1080. The Court rejected that an applicant must show a "substantial need" or present "a viable constitutional claim that is not procedurally barred." Id. at 1093 (citation omitted). Instead, funding may be reasonably necessary when it "stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default." Id. at 1094. The Court instructed that "the ‘reasonably necessary’ standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way." Id.

Ayestas contends that investigatory funding is reasonably necessary to develop claims that his trial counsel was ineffective for failing to present mitigating evidence of his substance abuse and mental illness at sentencing. See Wiggins v. Smith , 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). A prison psychologist first diagnosed Ayestas as schizophrenic in 2003 when his state-habeas application was still pending.

DISCUSSION

We review the district court’s denial of a Section 3599(f) motion for an abuse of discretion. Hill v. Johnson , 210 F.3d 481, 487 (5th Cir. 2000). "A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Perez v. Stephens , 745 F.3d 174, 177 (5th Cir. 2014) (citation omitted). When reviewing for abuse of discretion, the "underlying conclusions of law are reviewed de novo and conclusions of fact are reviewed for clear error." Aguilar-Ayala v. Ruiz , 973 F.2d 411, 416 (5th Cir. 1992) (citation omitted).

Since the Supreme Court’s Ayestas decision, we have remanded some Section 3599(f) denials for reconsideration by the district court. E.g. , Sorto v. Davis , 716 F. App'x 366 (5th Cir. 2018). Remand is not required "if the judgment is sustainable for any reason." Af-Cap, Inc. v. Republic of Congo , 462 F.3d 417, 425 (5th Cir. 2006). For that reason, other panels have affirmed pre- Ayestas denials where "the reasons the district court gave for its ruling remain sound." Jones v. Davis , 927 F.3d 365, 374 (5th Cir. 2019) (citation omitted).

I. Section 3599(f) Motion for Investigatory Funding

The district court denied the Section 3599(f) motion for these reasons: Ayestas "fail[ed] to demonstrate that [1] trial counsel was deficient, [2] that there [was] a reasonable probability that his claimed evidence of substance abuse would have changed the outcome of either his trial or his state habeas corpus proceeding, or [3] that his state habeas counsel was ineffective."

Whether the district court’s reliance on the first two reasons abused its discretion under the standard described in the Supreme Court’s Ayestas decision are close questions because of the district court’s emphasis on existing as opposed to potential evidence. The district court’s third reason for denying funding was that state-habeas counsel was not ineffective. Ayestas must establish that his state-habeas counsel was ineffective to overcome the procedural default of claims based on failures to present mitigating evidence of substance abuse and mental illness. See Trevino v. Thaler , 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). If the district court’s assessment of effectiveness is valid, then the district court did not abuse its discretion by denying funding regardless of any potential error in the other stated reasons.

We previously concluded that Ayestas’s state-habeas counsel was not constitutionally ineffective. Ayestas , 817 F.3d at 898. Nonetheless, the Supreme Court has informed us to consider "the prospect that the applicant will be able to clear any procedural hurdles standing in the way." Ayestas , 138 S. Ct. at 1094. This means assessing whether the investigation "stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default." Id. If no credible chance exists, then the investigation is not reasonably necessary regardless of the Wiggins claims’ viability or the likelihood of uncovering admissible evidence. That is because "it would not be reasonable — in fact, it would be quite unreasonable — to think that services are necessary to the applicant’s representation if, realistically speaking, they stand little hope of helping him win relief." Id.

A. State-Habeas Counsel’s Effectiveness

The question then is whether state-habeas counsel’s decision not to bring these specific claims fell outside of "prevailing professional norms" given any signs that mental illness and substance abuse went uninvestigated by trial counsel and in light of the post-conviction claims that were advanced instead. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

i. Prevailing Professional Norms

Capital defense practices have changed significantly over the past 30 years.¹ The Supreme Court, though, has made clear that counsel’s performance is to be evaluated based on "the professional norms prevailing when the representation took place." Bobby v. Van Hook , 558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009).

Scrutiny of mitigation investigations did not take shape until well after Ayestas’s state-habeas application was filed in 1998. At that time, the ABA guidelines spoke only briefly to the duties for post-conviction counsel. ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES 11.9.3, p. 126 (1989).² Ayestas’s current request for funding closely tracks supplementary ABA guidelines, but their "probative value ... is diminished by the fact that they were adopted" a decade after the state-habeas application was filed. Druery v. Thaler , 647 F.3d 535, 541 n.2 (5th Cir. 2011) ; see ABA SUPPLEMENTARY GUIDELINES FOR THE MITIGATION FUNCTION OF DEFENSE TEAMS IN DEATH PENALTY CASES (2008).

Ayestas’s state-habeas...