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Pitchford v. Hall

United States District Court, N.D. Mississippi, Greenville Division

November 26, 2018




         Before the Court are Petitioner Terry Pitchford's motions (1) for leave to file ex parte and under seal a motion for investigative assistance; (2) Petitioner's motion for investigative assistance; and (3) a motion to grant the motions for assistance as unopposed. Also before the Court is Respondents' motion for additional time within which to file a response to Petitioner's motions.

         I Ex Parte Request

         Petitioner requests that the Court allow him to proceed ex parte and under seal on a request for investigative services. See Doc. #41.

         Funding requests for expert and investigative services in death-eligible cases are governed by 18 U.S.C. § 3599, which presumes that the request will be publicly filed. See 18 U.S.C. § 3599(f). This Court has twice previously denied Petitioner's attempts to proceed ex parte on a request for investigative services, while directing Petitioner to publicly file his motion for consideration of the merits of the funding requests. Doc. #12, 17. In what the Court considers a querulous disregard for its prior rulings, Petitioner again seeks to persuade the Court that he should be allowed to proceed ex parte and under seal in his request for services rather than submit a publicly-filed motion. Having reviewed Petitioner's newest submission, the Court finds that his substantive motion for funding does not contain any more sensitive, protected information than that which is included in the filed petition and its accompanying exhibits. The Court also finds that counsel's repeated efforts to seek to file for investigative assistance ex parte after receiving instructions from the Court are not indicative of zealous representation, but rather, are unnecessary and ineffective efforts that waste judicial resources and public funds. Therefore, the motion to proceed ex parte will be denied, and the Court will consider the merits of the motion as publicly filed.


         Applicable Standard for Funding

          This Court may authorize funds for investigative or expert services upon a showing that the services are "reasonably necessary" for a petitioner's representation. 18 U.S.C. § 3599(f). The Supreme Court has recently held:

To be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. But the "reasonably necessary" test requires an assessment of the likely utility of the services requested, and § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.

Ayestas v. Davis, 138 S.Ct. 1080, 1094 (2018). Therefore, in considering whether services are reasonably necessary, courts are "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.

         III. Petitioner's Request for Investigative Funding

         A. Fact Investigator

         Petitioner seeks to engage a fact investigator to investigate numerous federal habeas claims of ineffective assistance of counsel, claims of juror bias and misconduct, claims regarding the credibility of witnesses and investigating officers, and the possibility that key fact witnesses may have information relevant to this case. He asks the Court to authorize fees in the amount of $12, 750, plus expenses, for the services of New Orleans capital defense investigator Albert Grandoit.

         Many of the claims Petitioner seeks to present in his habeas petition have not been raised in prior proceedings. It is possible that the Supreme Court rulings in Martinez and Trevino might allow Petitioner to overcome any procedural default that might otherwise prevent consideration of these claims. See Martinez v. Ryan,566 U.S. 1 (2012); Trevino v. Thaler,133 S.Ct. 1911 (2013). However, Petitioner has been appointed two habeas counsel in this case, and counsel have been permitted to claim compensation for services furnished by two additional associate attorneys. See Doc. #5. The Court has regularly authorized out-of-state counsel to travel to Mississippi to interview witnesses and conduct meetings with their client. See Docs. #10, #28, #30, #32, #35, #39, #50. Therefore, while the Court finds that some professional investigative services might be reasonably necessary, given the extensive meetings and interviews that have taken place to date, along with counsel's ongoing ability ...

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