United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM AND ORDER
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
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.
Ex Parte Request
requests that the Court allow him to proceed ex
parte and under seal on a request for investigative
services. See Doc. #41.
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.
Standard for Funding
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
Petitioner's Request for Investigative
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.
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