Fautenberry v. Mitchell

• Decision Date: 10 July 2009
• Docket Number: No. 09-3819.,09-3819.
• Citation: 572 F.3d 267
• Parties: John FAUTENBERRY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

572 F.3d 267

John FAUTENBERRY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 09-3819.

United States Court of Appeals, Sixth Circuit.

Submitted: July 7, 2009.

Decided and Filed: July 10, 2009.

ON BRIEF: Dennis Lyle Sipe, Buell and Sipe Co., L.P.A., Marietta, Ohio, Tyson Fleming, Randall L. Porter, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Justin M. Lovett, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: BATCHELDER, MOORE, and GILMAN, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 271-72), delivered a separate opinion concurring in the judgment.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

John Fautenberry is scheduled for execution by the state of Ohio on July 14, 2009. He appeals the district court's denial of his motion under 18 U.S.C. § 3599(f) for funds to hire a neuropsychologist to assist in the preparation of his state clemency petition. Because the district court did not abuse its discretion in holding that such expert assistance is not reasonably necessary, we AFFIRM.

I.

Fautenberry has exhausted all available appeals, including both state and federal habeas review. See Fautenberry v. Mitchell, 515 F.3d 614, 621-22 (6th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 412, 172 L.Ed.2d 299 (2008). On June 2, 2009, Fautenberry filed ex parte a sealed motion under 18 U.S.C. § 3599(f) for funds to compensate his counsel and to retain neuropsychologist Dr. Michael Gelbort for the preparation of his state clemency petition.

In support of his motion for expert funds, Fautenberry submitted the affidavit and report of neuropsychologist Dr. Jeffrey Smalldon, who evaluated Fautenberry during his state post-conviction proceedings in 1996 and concluded that he had a "mild—although by no means insignificant" degree of brain impairment. Smalldon wrote that Fautenberry's type of brain impairment can "cause serious problems in such areas of day-to-day functioning as impulse control; modulation of affect; planning; problem-solving; and the capacity to tolerate frustration." Additionally, Fautenberry presented: affidavits from family friends Kenneth and Louise Corcoran, also taken in 1996, providing anecdotal evidence of head injuries that Fautenberry had suffered as a child; medical records documenting injuries, including head injuries, that Fautenberry had sustained; and Dr. Gelbort's resume.

At the district court's direction, Fautenberry filed a proposed clemency budget, also ex parte and under seal, on June 17, 2009. On June 23, 2009, the court issued a sealed order denying Fautenberry's motion for funds to hire Dr. Gelbort. Specifically, the court held that Fautenberry's motion was "long on the head injuries that [he] suffered and the manner in which those injuries likely affected his day-to-day behavior ... but short on an explanation for why another neuropsychological assessment is reasonably necessary in this case." On June 25, 2009, the court approved the remainder of the expenses listed in Fautenberry's proposed budget. On July 1, 2009, Fautenberry filed his notice of appeal; in his brief filed before this Court on July 7, 2009, he asks us to vacate the district court's order, remand the case for the authorization of funding, and stay his execution so that he can present Dr. Gelbort's findings to the governor of Ohio.

II.

Fautenberry claims that the district court erred by denying his request, made pursuant to 18 U.S.C. § 3599(f), for funds to retain a certain neuropsychologist to assist his attorney with the preparation of his state clemency petition. Section 3599(f) provides, in pertinent part:

Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under subsection (g).

18 U.S.C. § 3599(f) (emphasis added).

Due to the discretionary language in § 3599(f), we review the district court's decision for an abuse of discretion. Cf. Cornwell v. Bradshaw, 559 F.3d 398, 410 (6th Cir.2009); Rosales v. Quarterman, 565 F.3d 308, 312 (5th Cir.2009). "A district court abuses its discretion where it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact." Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir.2007) (en banc) (internal quotation marks omitted). Moreover, we will find that a district court has abused its discretion only when we have "a definite and firm conviction that the trial court committed a clear error of judgment." Ford Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir.2007).

The district court considered Fautenberry's request in light of § 3599(f) and concluded, based on Fautenberry's motion and supporting exhibits, that the service requested was not "reasonably necessary" because Fautenberry had provided no reasons to explain why it would be necessary:

[Fautenberry]'s motion, however compelling at first glance, is long on the head injuries that [Fautenberry] suffered and the manner in which those injuries likely affected his day-to-day behavior in a number of facets, but short on an explanation for why another neuropsychological assessment is reasonably necessary in this case. It is apparent from [Fautenberry]'s own exhibits that Dr. Smalldon performed a comprehensive neuropsychological evaluation of [Fautenberry] in 1996.

Nowhere in [Fautenberry]'s motion for funds to retain the services of Dr. Michael Gelbort does [Fautenberry] allege or even suggest that Dr. Smalldon's evaluation was faulty, incomplete, outdated, or otherwise unreliable. Nowhere does [Fautenberry] allege or even suggest how a new neuropsychological evaluation by Dr. Gelbort now might assist the Ohio Adult Parole Authority or the Governor of the State of Ohio in determining whether [Fautenberry] is entitled to clemency.

Having reviewed [Fautenberry]'s motion and supporting exhibits, as well as the decisions issued by this [c]ourt and the Sixth Circuit denying [Fautenberry]'s request for habeas corpus relief, this [c]ourt finds itself unable to even conjecture why the services of Dr. Gelbort are reasonably necessary for [Fautenberry] to prove his case for clemency.

Fautenberry v. Mitchell, No. 1:00-cv-332, *4 (S.D. Ohio June 23, 2009) (paragraph breaks inserted).

On appeal, Fautenberry does not contend that the district court "applie[d][an] incorrect legal standard [or] misapplie[d] the correct legal standard"; rather, he contends that the district court "relie[d] upon clearly erroneous findings of fact." See Getsy, 495 F.3d at 310. Specifically, Fautenberry argues on appeal that the district court improperly relied on the 1996 examination:

[T]he District Court abused its discretion when it denied the [request] based upon the fact that Mr. Fautenberry had previously been examined by a neuropsychologist in 1996 [i.e., Dr. Jeffrey L. Smalldon, Ph.D.]. Mr. Fautenberry's mental condition may well have changed in the last 13 years. Mr. Fautenberry wished to present to the Parole Board and the Governor an updated evaluation to demonstrate th[at] he would not be a threat if his sentence w[ere] reduced to life.

Apt.'s Br. at 7 (citations omitted). Fautenberry continues:

[T]he District Court abuse[d] its discretion when it determined that Mr. Fautenberry had not proven that the facts supported the granting of funding. Given Mr. Fautenberry's history of head trauma, and Dr. Smalldon's post conviction diagnosis of brain impairment, the District Court abused its discretion when it denied [Fautenberry's] motion for funding for a neuropsychologist.

Apt.'s Br. at 10 (citations omitted). Fautenberry goes on to argue that the court's reliance on the 1996 evaluation was erroneous because that evaluation is incomplete, outdated, and unreliable.

But, based on the nature of this case and the nature of our review (abuse of discretion), we are not called upon to decide whether the 1996 evaluation was actually incomplete, outdated, or unreliable. See Workman v. Bredesen, 486 F.3d 896, 923-24 (6th Cir.2007) (Cole, J., dissenting) ("[S]o long as the district court acted within its sound discretion, we may not reverse its judgment even if we would have decided the matter differently."). The question we must decide in this appeal is whether the district court, acting on the information before it at the time, "committed a clear error of judgment." See Ford Motor, 487 F.3d at 468. That is, did Fautenberry provide the district court with the arguments he now presses on appeal and, if so, do we have a "definite and firm conviction" that the district court reached the wrong conclusion in its assessment of those arguments. See id.

In the text of his motion to the district court ("John Fautenberry's Motion for Funds" dated June 2, 2009), Fautenberry made only two references to Dr. Smalldon and the 1996 evaluation:

"Dr. Smalldon, who evaluated Mr. Fautenberry in post-conviction[,] unequivocally concluded, `It is my opinion, offered with reasonable psychological certainty, that Mr. Fautenberry is brain impaired.'"

And:

"Given Mr. Fautenberry's history of head trauma, Dr. Smalldon's post conviction diagnosis of brain impairment, and the findings of the Sixth Circuit, the approval of funding for a neuropsychologist is warranted in this case."

Neither of these references indicates that Dr. Smalldon's evaluation was incomplete, outdated, or unreliable. Fautenberry also appended that evaluation (which is 15 pages long) to his motion.

The district court stated: "It is apparent from [Fautenberry]'s own exhibits that Dr. Smalldon performed a comprehensive...