Matthews v. White, 13–5901.

• Decision Date: 10 November 2015
• Docket Number: No. 13–5901.,13–5901.
• Parties: David Eugene MATTHEWS, Petitioner–Appellant, v. Randy WHITE, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

807 F.3d 756

David Eugene MATTHEWS, Petitioner–Appellant,

v.Randy WHITE, Warden, Respondent–Appellee.

No. 13–5901.

United States Court of Appeals, Sixth Circuit.

Nov. 10, 2015.

ON BRIEF:David M. Barron, Kentucky Department of Public Advocacy Frankfort, Kentucky, Alan M. Freedman, Midwest Center for Justice, Ltd., Evanston, Illinois, for Appellant. Matthew R. Krygiel, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before SILER, MOORE, and CLAY, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In 1982, David Matthews was convicted of murder and sentenced to death. His conviction and sentence have been affirmed on direct appeal and in post-conviction proceedings. See Matthews v. Commonwealth, 709 S.W.2d 414 (Ky.1985) ; Matthews v. Commonwealth, No. 96–SC–805–MR (Ky. Nov. 20, 1997); Matthews v. Simpson, 603 F.Supp.2d 960 (W.D.Ky.2009) (denying habeas petition), rev'd in part sub nom. Matthews v. Parker, 651 F.3d 489 (6th Cir.2011), rev'd sub nom. Parker v. Matthews, ––– U.S. ––––, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012). Having exhausted his judicial remedies, Matthews intends to petition the Governor of Kentucky for clemency under § 77 of the Kentucky Constitution. Matthews will base his request, at least in part, on what he thinks are mitigating factors related to his neuropsychological health. Before the court is the question whether Matthews is entitled to funding under 18 U.S.C. § 3599 so that he may secure a neuropsychological evaluation to support this argument. The district court denied his request, but appeared to rely on an incorrect rule that § 3599 funding is available only for use in federal proceedings and did not otherwise explain its reasons for denying the request. We therefore VACATE the district court's judgment and REMAND for further proceedings consistent with this Opinion.

I. BACKGROUND

Matthews received a neuropsychological evaluation from Dr. Richard Edelson in preparation for his trial in 1982, which resulted in a very general set of conclusions and a report that is just over two pages long. See R. 280–2 (Edelson Report) (Page ID # 1181–83). Matthews contends that this evaluation is both dated and incomplete, making it inadequate to support his clemency petition.

Dr. John Fabian, a forensic neuropsychologist, stated that in the decades since the 1982 evaluation was conducted, the Bender Gestalt Test

—one of the tests that had been administered to Matthews—has become "very outdated, rarely used today, and [is] not helpful to gain a full and reliable understanding of the extent of Matthews' neuropsychological deficits and brain damage." R. 280–1 (Fabian Decl. ¶¶ 1, 12) (Page ID # 1162, 1164). Dr. Fabian also proffers that the 1982 evaluation was deficient in that: (1) it failed to "include any executive functioning testing," even though "[w]hen considering the brain mechanisms related to violence, executive functioning is a critical area to examine," id. ¶¶ 9–10 (Page ID # 1164); (2) it did not "thoroughly assess Matthews' neurocognitive functioning," as "[t]he evaluation was extremely limited in scope and results, culminating in a report that was only three pages and that spoke mainly in generalities," id. ¶ 11 (Page ID # 1164); and (3) it did not "consistently integrate [its] data of neuropsychological deficit with Matthews' chronic substance abuse, electrocution, and other trauma events that insult the brain," id. ¶ 12 (Page ID # 1164–65). If anything, Dr. Fabian concluded, the information contained in the report—along with evidence of Matthews's substance abuse, alcohol consumption, inhaling glue, malnutrition as a child, and an instance of having lost consciousness as a child due to an electric shock—led Dr. Fabian to conclude that it is likely "that Matthews suffers from some neuropsychological deficits and brain damage" and that "a full neuropsychological battery would be appropriate and would likely provide a much fuller picture of the extent and scope of Matthews' neuropsychological deficits." Id. ¶¶ 5, 7–8, 13 (Page ID # 1162–63, 1165).¹

This additional information could support Matthews's petition for clemency from the Governor of Kentucky, so he asked the district court to authorize the payment of expenses associated with this evaluation pursuant to 18 U.S.C. § 3599. The district court denied Matthews's request. See R. 286 (Memorandum and Order) (Page ID # 1252–59). Much of the district court's opinion summarized the facts and the parties' competing arguments. See id. The analysis section in Parts III.A and III.B expressed the State's arguments and Matthews's responses, but never provided a resolution. See id. at 5–7 (Page ID # 1256–58) (stating that Matthews's "case is more aligned with Fautenberry v. Mitchell, 572 F.3d 267 (6th Cir.2009)" than with a district court decision "in which funds were awarded for a neuropsychological evaluation and brain scan," but then summarizing Matthews's reasons for distinguishing Fautenberry ); id. at 7 (Page ID # 1258) (summarizing a recent district court decision that denied a § 3599 request where "the request for a neuropsychologist seemed ‘to be based upon the mere hope or suspicion that an expert may find something of use, and is not based on any showing of actual reasonable necessity’ "); id. at 7–8 (Page ID # 1258–59) (quoting Foley v. White, No. 6:00–552–DCR, 2013 WL 990828, at *8 (E.D.Ky. Mar. 12, 2013) ) (noting that Matthews "pointed to a history of events and behavior that can cause brain damage; he has provided an expert opinion that neuropsychological testing is warranted; and has explained why previous testing was inadequate and is now outdated," and then stating "[o]n the other hand, Dr. Fabian has already presented an affidavit containing opinions which the Governor could use"). The district court closed with Part III.C.:

Petitioner asks for funds to make an argument before the state Governor. The Court finds it a questionable exercise of its discretion to allow the expenditure of federal funds to pursue a state remedy. While federally appointed counsel may well be entitled to make such a request, the granting of such funds is clearly not a right. Moreover, while this Court "is fully cognizant of the interests at stake in this proceeding ... the Court also cannot condone the continual, repeated outflow of taxpayer funds" for matters which Petitioner "has already been given a full and fair opportunity to litigate." Woods v. Thaler, No. A–09–CA–789–SS, 2009 WL 3756847, at *7 (W.D.Tex. Nov. 6, 2009). The Court will exercise its discretion to deny the funds.

Id. at 8 (Page ID # 1259).

II. ANALYSIS

A. Requirements for a Motion Under 18 U.S.C. § 3599

18 U.S.C. § 3599 allows for the appointment of counsel in, among other things, "proceedings for executive or other clemency as may be available to the defendant." Id. § 3599(e). The statute also provides that "[u]pon 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." Id. § 3599(f). "The Supreme Court recently made clear ‘that [18 U.S.C.] § 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.’ " Fautenberry v. Mitchell, 572 F.3d 267, 272 (6th Cir.2009) (Moore, J., concurring) (quoting Harbison v. Bell, 556 U.S. 180, 194, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) ). Section 3599(f) therefore authorizes the payment of fees related to an expert witness whose " ‘services are reasonably necessary for the representation of the defendant’ " in connection with state clemency proceedings. See id. (quoting 18 U.S.C. § 3599(f) ); id. at 268–71 (panel majority also applying § 3599 analysis to request for funds in support of a state clemency petition).

In general, this means "that an expert should be appointed ‘when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant's position cannot be fully developed without professional assistance.’ " Wright v. Angelone, 151 F.3d 151, 163 (4th Cir.1998) (quoting Williams v. Martin, 618 F.2d 1021, 1026 (4th Cir.1980) ).² The issue is more often litigated in the context of federal habeas proceedings, where it is clearer what questions could affect the outcome of proceedings and thereby be considered "substantial," and what testimony might be useful to support the petitioner's argument. Clemency proceedings present different issues:

[C]onsideration must be given to the nature and purpose of clemency proceedings. The clemency process takes place only after all judicial proceedings have been completed. In capital cases, such judicial proceedings include, at a minimum, trial, direct appeal, state post-conviction review, and federal habeas review, in all of which proceedings indigent prisoners are provided with legal representation and investigative and expert assistance at taxpayer expense. Clemency "proceedings are a matter of grace entirely distinct from judicial proceedings." Harbison, 556 U.S. at 192, 129 S.Ct. 1481. "Clemency is deeply rooted in our Anglo–American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Herrera v. Collins, 506 U.S. 390, 411–12, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (footnote omitted). Thus, when a petitioner requests funds for investigative services for the purpose of clemency proceedings, the petitioner must show that the requested services are reasonably necessary to provide the Governor and Board of Pardons and Paroles the information they need in order to determine whether to exercise their discretion to extend grace to the petitioner in order to prevent a

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