Opinion
Civil Action No. 3:99-CV-0808-G.
August 31, 2000.
MEMORANDUM ORDER
Before the court is the third application of the petitioner Toronto Markkey Patterson ("Patterson") for funds, under 21 U.S.C. § 848 (q)(9), to obtain investigative assistance. Patterson's first application was denied by this court on February 8, 2000, without prejudice to future applications for such funds. See Order of February 8, 2000. Patterson's second application was dismissed by this court on June 16, 2000, without prejudice to apply again "at a later date with sufficient facts showing that such funds are reasonably necessary." See Memorandum Order of June 16, 2000 at 4. On July 10, 2000, Patterson filed his third application for investigative funds, in an attempt to supply the particularity which the district court had found lacking in his second application. See Third Application for Funds to Obtain Investigative Assistance Under 21 U.S.C. § 848 (q)(9) ("Third Application"). On August 15, 2000, the United States Magistrate Judge recommended that Patterson's third application again be dismissed without prejudice, on the ground that Patterson's request for investigative funds "remains premature." See Report and Recommendation of United States Magistrate Judge ("Report"), filed August 15, 2000, at 2. Patterson objected to this Report on August 22, 2000. See generally Objections to Report and Recommendation of United States Magistrate Judge ("Objections").
Although no habeas petition has yet been filed, this case continues to present challenging questions for this court. In his third application, Patterson contends that with proper investigative funds he can present a claim that his attorneys rendered ineffective assistance of counsel at the punishment phase of his trial because they failed to investigate and develop available evidence in mitigation of punishment. See Third Application at 5. Patterson's federal habeas counsel argues that his preliminary investigation into this matter suggests that, had trial counsel conducted a comprehensive examination of Patterson's background and social history, a far more detailed and humanizing picture of Patterson could have been presented at the punishment phase of his trial. Id. at 9.
Yet, as the Magistrate Judge notes, it is undisputed by the parties that no claim of ineffective assistance of counsel predicated on a failure to present additional evidence on mitigation of punishment has been presented to the Texas state courts. See Report at 1-2. Whether this failure to present the claim to the state courts bars this court from considering the claim is dependent on whether such failure is excepted from the exhaustion requirements of § 2254 or is otherwise excepted under decisions of the United States Supreme Court. E.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992) ("As in cases of state procedural default, application of the cause-and-prejudice standard to excuse a state prisoner's failure to develop material facts in state court will appropriately accommodate concerns of finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum."), also Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1479, 1489 (2000) ("As is evident from the similarity between the Court's phrasing in Keeney and the opening clause of § 2254(e)(2), Congress intended to preserve at least one aspect of Keeney's holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing."). Thus, the Magistrate Judge recommended denying Patterson funds until such time as his habeas petition has been filed, on the ground that the information necessary to establish the "cause" and "prejudice" needed to overcome a procedural bar is obtainable from counsel who represented him in his direct appeal and in his first state habeas application. Report at 2.
However, as Patterson points out, for the district court to adopt such a holding would place him in a difficult, if not impossible, predicament. In order to obtain relief in a federal post-conviction proceeding, Patterson must allege facts which, if true, would entitle him to relief. Without investigative funds to help identify promising habeas corpus claims, Patterson's counsel may not be able to marshal the facts needed to make a good-faith allegation of a federal constitutional violation. Even if he could allege facts which, if true, would establish "cause" for the procedural default, without investigative funds at the pre-application stage, Patterson may be unable to show a constitutional violation with sufficient particularity (and perforce, would be unable to show "prejudice"). As the Supreme Court noted in McFarland v. Scott, 512 U.S. 849, 855 (1994), the investigative resources provided under 28 U.S.C. § 848 (q)(9) "may be critical in the preapplication phase of a habeas corpus proceeding, when possible claims and their factual bases are researched and identified."
Ultimately, the court concludes that it makes little sense to force Patterson to first try to make a good faith claim of a constitutional violation before supplying him with the resources to investigate this claim's factual basis and validity. This is especially true of a claim that may have been procedurally defaulted in the state post-conviction forum, for which Patterson must also allege and prove not just "cause" for the procedural default, but "prejudice" as well. If Patterson is to make the requisite allegation of constitutional deficiency and consequent "prejudice" in his petition, he should be allowed to investigate and develop the full extent of the mitigating evidence that trial counsel allegedly failed to investigate and produce at his trial. It is for this purpose that he seeks federal investigatory funds.
For the above reasons, the Magistrate's Report is not adopted. Instead the court, pursuant to its authority under 21 U.S.C. § 848 (q)(9), authorizes payment of up to $3,500.00 for investigative services reasonably necessary for the effective representation of Patterson in the preparation of a federal petition for writ of habeas corpus in his behalf.
SO ORDERED.