                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0211p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


 ROBERT CARL FOLEY,                                    ┐
                              Petitioner-Appellant,    │
                                                       │
                                                       │
        v.                                              >      No. 13-5459
                                                       │
                                                       │
 RANDY WHITE, Warden,                                  │
                             Respondent-Appellee.      │
                                                       ┘
                        Appeal from the United States District Court
                      for the Eastern District of Kentucky at London.
                   No. 6:00-cv-00552—Danny C. Reeves, District Judge.

                                  Argued: April 27, 2014

                            Decided and Filed: August 26, 2016

                      Before: SUTTON, COOK, and WHITE, Circuit Judges.
                                 _________________

                                        COUNSEL

ARGUED:       Euva Blandford, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange,
Kentucky, for Appellant. ON BRIEF: Euva Blandford, DEPARTMENT OF PUBLIC
ADVOCACY, LaGrange, Kentucky, Michael J. O’Hara, O’HARA, RUBERG, TAYLOR,
SLOAN & SERGENT, Crestview Hills, Kentucky, for Appellant. David W. Barr, OFFICE OF
THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

       COOK, J., delivered the opinion of the court in which SUTTON, J., joined. WHITE, J.
(pp. 7–12), delivered a separate dissenting opinion.




                                              1
No. 13-5459                               Foley v. White                             Page 2


                                      _________________

                                           OPINION
                                      _________________

       COOK, Circuit Judge.       A Kentucky jury sentenced Robert Foley to death for the
1991 shootings of brothers Lynn and Rodney Vaughn. Foley v. Commonwealth, 942 S.W.2d
876, 879 (Ky. 1996). After exhausting all available appeals, Foley moved under 18 U.S.C.
§ 3599(a)(2) and (f) for the district court to appoint counsel and grant funds to retain experts in
anticipation of state clemency proceedings. Foley requested a neuropsychologist to evaluate the
impact of multiple head injuries on his mental functioning. He also sought a ballistics and
crime-scene reconstruction expert to support his contention that he shot Rodney in self-defense
and that someone else shot Lynn. The district court granted his motion to appoint counsel but
denied expert funds as not reasonably necessary for Foley’s clemency bid. Discerning no abuse
of discretion in the district court’s decision, we AFFIRM.

       Under 18 U.S.C. § 3599(f), a district court may authorize “the payment of fees related to
an expert witness whose ‘services are reasonably necessary for the representation of the
defendant.’” Matthews v. White, 807 F.3d 756, 759 (6th Cir. 2015) (quoting Fautenberry v.
Mitchell, 572 F.3d 267, 272 (6th Cir. 2009) (Moore, J., concurring)). A district court should
approve funds 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.” Id. at 760 (quoting Wright v. Angelone, 151 F.3d 151, 163 (4th Cir. 1998)). In the
clemency context, “the petitioner must show that the requested services are reasonably necessary
to provide the Governor and [Parole Board] the information they need in order to determine
whether to exercise their discretion to extend grace to the petitioner in order to prevent a
miscarriage of justice.” Id. (quoting Brown v. Stephens, 762 F.3d 454, 460 (5th Cir. 2014)).

       We review a district court’s decision to deny funds for an abuse of discretion.
Fautenberry, 572 F.3d at 268. “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.” Id. at 268–69 (quoting Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir. 2007) (en
banc)). If a district court acts within its sound discretion, its decision stands “even if we would
No. 13-5459                               Foley v. White                               Page 3


have decided the matter differently.” Id. at 270 (quoting Workman v. Bredesen, 486 F.3d 896,
923–24 (6th Cir. 2007) (Cole, J., dissenting)).

       Foley insists the district court abused its discretion in denying funds for a
neuropsychologist and a ballistics and crime-scene reconstruction expert. We examine each
request in turn.

       A.      Neuropsychologist

       Foley alleges he suffered several head injuries throughout his life that may have
contributed to his violent behavior. In support of his request for a neuropsychologist to evaluate
the effect of these injuries, he supplied an affidavit from his mother Lois Foley, transcripts of his
family’s post-conviction testimony, a newspaper article, medical records, and a document from
the Kentucky Department of Corrections.

       In her affidavit, Lois swore that she ingested harmful substances when pregnant with
Foley and that Foley experienced multiple head injuries as a child and as an adult. Post-
conviction testimony from Lois and Foley’s brother mirrored those allegations. According to the
newspaper article, Foley—although not seriously injured—required hospital treatment after a car
wreck in 1975 but an x-ray of Foley’s head taken after that accident showed no cranial injury.
Similarly, he was involved in another car crash in February 1991, causing lower-back pain and
an abrasion on his forehead, and he experienced temporary leg numbness in May 1991. A CT
scan and x-ray of Foley’s head after the second accident came back normal. Finally, the prison
document details an incident in 2011 when Foley became “woosy” and fell, remaining
unconscious for one to three minutes.

       In denying funds, the district court found that “Foley does not have a long history of
multiple head injuries, a history of childhood developmental issues, and is not of extremely low
intelligence.” To the contrary, Foley “was quite intelligent and had been fully involved in
assisting his own defense. He had no history of mental illness . . . [and] was married and had
been operating his own trucking company.” Moreover, the district court noted that “Foley’s
competency and mental health have been discussed, analyzed, and adjudged numerous times
No. 13-5459                               Foley v. White                             Page 4


before this Court and others, and his arguments have consistently been found to be without
merit.” Thus, no reasonable necessity supported Foley’s request for a neuropsychologist.

       Foley claims the district court clearly erred in finding that he lacked “a long history of
multiple head injuries.” But given the lack of medical documentation to support his family’s
testimony and the absence of any indicators of brain damage or mental illness in the record, the
district court’s assessment was not clearly erroneous. Though Foley points to his past acts of
aggression as evidencing brain trauma, his background and criminal history suggest that he is
violent, not mentally impaired.

       Foley further argues that the district court’s order flouts our decision in Matthews v.
White, 807 F.3d 756 (6th Cir. 2015), by relying on prior state and federal court adjudications
concerning Foley’s mental health.     In Matthews, we held that the district court abused its
discretion by “appear[ing] to rely on an incorrect rule that § 3599 funding is available only for
use in federal proceedings and [by] not otherwise explain[ing] its reasons for denying the
request.” Id. at 757–58. In discussing possible rationales for the district court’s decision, this
court mentioned that “it remains unclear why [defendant’s] prior litigation of mental-health
issues alone means that a new evaluation cannot be ‘reasonably necessary’ for his clemency
petition.” Id. at 763 (emphasis added) (citing Sanborn v. Parker, No. 99-678-C, 2011 WL
6152849, at *1 (W.D. Ky. Dec. 12, 2011)). This language in Matthews cannot support Foley’s
position that a district court abuses its discretion by relying—in part—on prior decisions
addressing similar issues. Here, the district court independently reviewed the record, noted the
prior decisions, and found the reasons underlying them persuasive before reaching its conclusion.
And the court recognized that “previous findings of competency . . . are not dispositive of
Foley’s [§ 3599] motion.” We therefore discern no abuse of discretion.

       B.      Ballistics and Crime-Scene Reconstruction Expert

       Foley also requests an expert in ballistics and crime-scene reconstruction to support his
allegations of actual innocence and self-defense. He attached to his motion an affidavit from an
expert, John Nixon, explaining how the victims’ injuries and the bullet trajectories are consistent
No. 13-5459                                Foley v. White                               Page 5


with Foley’s version of the events. Foley insists that Nixon requires additional funds to more
thoroughly review the case.

       The district court denied Foley’s request, finding that “[g]iven the expansive and detailed
nature of the record of this case, a ‘full’ review of a ballistics expert would only be redundant of
what is already contained in the record.” Specifically, the court explained that Foley’s lay
witness, Pershing Hayes, testified at trial about the bullet trajectories and implied that Foley
could not have shot Lynn Vaughn. The court also found that “Foley now has the benefit of
[Nixon’s] expert opinion,” rendering further analysis duplicative. Finally, the court noted that
“[t]he jury, along with various appellate and reviewing courts, . . . found the overwhelming
evidence of guilt far outweighed any far-reaching allegation of self-defense and actual
innocence.”

       Foley claims the district court clearly erred in finding that Hayes testified at trial about
the trajectory and irregularity of bullets found at the scene. He notes that the trial court sustained
an objection to Foley’s attorney asking Hayes about the angle of the bullets. But Foley ignores
that Hayes’s complete ballistics analysis appears in Hayes’s avowal testimony. The district court
thus correctly concluded that the record contains Hayes’s ballistics testimony for the Kentucky
Governor to review.

       Next, Foley again cites Matthews in arguing that the district court committed legal error
by relying on previous decisions regarding the ballistics testimony. But the district court relied
on these decisions because they persuasively described the overwhelming proof of Foley’s guilt
and supported its duplicative-evidence rationale. It was entitled to do so.

       Foley maintains that additional funds are reasonably necessary for Nixon to “review more
of the case materials; create diagrams of the projectiles based on witnesses’ testimony and the
autopsy reports, and to produce a computer animation of events based on the witnesses’
testimony and the autopsy reports.” In his affidavit, however, Nixon explained that he reviewed
the autopsy reports of both Vaughn brothers, the lab reports describing the bullets and bullet
fragments, the trial testimony and report of the state’s ballistics expert, and the trial testimony of
the witnesses to the murders. Foley fails to identify any additional materials that Nixon has yet
No. 13-5459                               Foley v. White                              Page 6


to examine. Given the comprehensive nature of Nixon’s report, the district court’s finding that
further evaluation of the evidence is not reasonably necessary makes sense and fell within its
discretion. See Fautenberry, 572 F.3d at 270–71 (“[Petitioner] advanced no evidence from
which the district court could find that [the expert’s] evaluation would not be duplicative of
information already available to the state executives entertaining his clemency petition.”).

       Finally, we note that Foley is under additional death sentences for murdering four people
in 1989. Foley v. Commonwealth, 953 S.W.2d 924, 928 (Ky. 1997). The ballistics and crime-
scene evidence he seeks to present fails to address those crimes.

       For these reasons, we AFFIRM.
No. 13-5459                                      Foley v. White                                     Page 7


                                             _________________

                                                   DISSENT
                                             _________________

        HELENE N. WHITE, Circuit Judge, dissenting. I respectfully dissent.

        The district court did not have the benefit of Matthews v. White, 807 F.3d 756 (6th Cir.
2015), which was decided during the pendency of this appeal, and directs that a court’s
determination whether § 3599(f) funds are reasonably necessary must focus on whether “a
substantial question exists over an issue requiring expert testimony for its resolution and the
[petitioner’s] position cannot be fully developed without professional assistance.” Id. at 760–61
(quoting Wright v. Angelone, 151 F.3d 151, 164 (4th Cir. 1998)). Matthews emphasized that
clemency proceedings “are a matter of grace entirely distinct from judicial proceedings,” and that
a petitioner requesting funds under § 3599(f) for the purpose of clemency proceedings need only
“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 miscarriage of justice.”
Matthews, 807 F.3d at 760 (quoting Brown v. Stephens, 762 F.3d 454, 460 (5th Cir. 2014)
(quoting Harbison v. Bell, 556 U.S. 180, 192 (2009)).

                                      Neuropsychological Evaluation

        As for Foley’s request for funding for a neuropsychological evaluation, the district court
clearly erred in finding that Foley does not have a long history of multiple head injuries, given
the affidavit of Foley’s mother,1 and post-conviction testimony from his mother and brother.



        1
          According to Lois Foley, she was very young when she got pregnant with Foley and her “sister told me
how to abort my baby by drinking bitters mixed with other things. This did not work but I was sick afterwards.”
Further, when Foley’s umbilical cord fell off she was frightened and threw him across the room and he hit his head
on a chair; when he was four he fell off a highchair and out a window and hit his head; when he was seven he fell
from a car and hit his head; and at age sixteen or seventeen, he was electrocuted by a live 220-volt electrical wire
while trying to fix a water pump. Foley also fell from a horse when he was seventeen and hit his head, was in two
car wrecks between ages eighteen and nineteen, and suffered head injuries in both. Lois Foley did not seek
treatment for Foley. Further, Foley was in another car accident in 1991 where he suffered head trauma and was
treated. Finally, Lois Foley averred that although she spoke with Foley’s trial counsel, they never talked about
family history and she was not asked to testify on her son’s behalf. PID 461-62. In February 2011, Foley fell in his
No. 13-5459                                       Foley v. White                                        Page 8


See Maj. Op. at 3. The district court’s rationale for denying expert funds, which the majority
approves, Maj. Op. at 4, was:

         Foley’s competency and mental health have been discussed, analyzed, and
         adjudged numerous times before this Court and others, and his arguments have
         been consistently been found to be without merit. Both this Court and the
         Supreme Court of Kentucky have held that Foley’s trial counsel was neither
         ineffective nor unreasonable for declining to request a competency hearing.

PID 611-12.        But Foley does not seek to show that he is incompetent or not criminally
responsible, and the district court’s reliance on prior court rulings unrelated to clemency
contravenes the Matthews standard, under which a petitioner need only show that the requested
services are reasonably necessary to provide the officials making the clemency determination
“the information needed in order to determine whether to exercise their discretion to extend
grace to the petitioner . . .” Matthews, 807 F.3d at 760 (quoting Brown, 762 F.3d at 460). By
applying an incorrect legal standard to Foley’s request for a neuropsychological evaluation, the
district court abused its discretion. See Fautenberry v. Mitchell, 572 F.3d 267, 268–69 (6th Cir.
2009).

                           Ballistics and Crime-Scene Reconstruction Expert

         The district court also relied on the clearly erroneous factual finding that full review by a
ballistics expert would duplicate Pershing Hayes’s testimony. At Foley’s murder trial, Hayes, a
friend of Foley with no formal training in ballistics, was found unqualified as a ballistics expert
and was not permitted to testify regarding an out-of-court experiment he conducted. Appendix V
(8/31/1993 Trial Tr. 45, 108-09). In the experiment, Hayes borrowed a weapon that Foley’s trial
counsel believed was a similar caliber weapon and fired it into a plaster wall. App. V 43. The
trial court concluded that there was insufficient showing that the experiment duplicated the
shootings. Id. at 43, 106.2 Hayes was permitted to offer lay testimony, however, and testified


cell and hit his head and was unable to answer questions concerning time, day, etc., but the more he spoke the more
oriented he became.
          2
            When the trial court ruled Hayes unqualified to testify as a ballistics expert and the court stated it would
recess for lunch, trial counsel requested a half-day continuance to secure another ballistics expert. The trial court
denied the continuance but stated it would consider the request later in the afternoon. Id. at 112. After the lunch
recess, trial counsel requested that Hayes be permitted to offer lay testimony to the jury. The trial court agreed. Id.
at 118.
No. 13-5459                               Foley v. White                               Page 9


that the bullets passed through something before hitting the wall, distorting the bullets, in one
instance because a bullet shed its jacket. 9/1, 9/2 Trial Tr. 57-60. Hayes was not permitted to
testify regarding the direction the bullets were fired from or the angle at which the bullets would
have entered the wall. On cross-examination, Hayes testified he had no professional experience
in ballistics examination and had never more than casually examined bullets that served as
exhibits or been trained in how to identify bullets, agreeing that the jury was as qualified as he to
determine whether a bullet’s jacket had been removed. Id. at 161-62. On re-cross, Hayes
testified, “ballistic people in your lab could have given you a full analysis,” and that he was not
qualified to perform that analysis. Id. at 75-76.

John Nixon’s affidavit

       In stark contrast, the affidavit of John Nixon offered by Foley in his
supplement/amendment to his § 3599(f) motion for expert funds provides:

       1. Education & background. I am originally from the United Kingdom,
          where I worked as a scientist and professional engineer for the UK
          government, conducting weapons systems research, design,
          development, performance testing . . . and forensic examinations,
          including firearms . . . I am currently a consultant with Athena
          Research & Consulting LLC in Bippus, Indiana, specializing in
          technical and forensic consulting in the areas of incident scene
          reconstruction, firearms, ballistics, munitions, and explosives. I
          have conducted extensive forensic engineering research and have been
          responsible for numerous innovations in guns and munitions design. I
          have published numerous research papers and technical articles . . . . In
          addition to testifying in UK courts, I have testified as an expert in
          numerous US federal courts, and many state courts, including . . .
          Kentucky . . . A list of publications is included in my curriculum vitae,
          which is appended . . .
       2. I have examined materials provided by counsel for Mr. Foley in this
          case. These materials include that autopsy reports of both Rodney and
          Lynn Vaughn, as well as laboratory reports identifying the bullets and
          bullet fragments related to the case, including those recovered during
          the autopsies. In addition, I have examined the report of Charles
          Lanham, with the Kentucky State Police, as well as a transcript of his
          trial testimony. I have also read transcripts of the trial testimony of
          Ronnie Dugger, Pershing Hayes, Danny Joe Bryant, Phoebe Watts and
          Robert Foley.
No. 13-5459                            Foley v. White                              Page 10


      3. Based upon the testimony of these individuals, as well as the reports
         provided to me concerning the technical evidence/testimony, and
         autopsies in this case, I have concluded:
              a. The trajectory of the bullets that impacted the body of Rodney
                 Vaughn most likely indicate that he was kneeling at the time he
                 was shot. I base this conclusion on the general trend of the
                 bullets moving downward through the body, with most of the
                 bullets entering in the back and exiting in the front. The
                 downward trajectory, coupled with most of the projectiles
                 having entered Rodney’s back, indicates that Rodney must
                 have been kneeling as, had he been standing, it would have
                 been impossible for him to lean far enough back to create those
                 angles. The general bullet trajectory also makes it more likely
                 that a relatively short shooter (consistent with Foley’s height
                 [5’7”]) was standing.
              b. Rodney’s injuries are consistent with him holding a gun at the
                 time he was shot. The general trend of the bullet trajectory
                 from left to right through Rodney’s body is consistent with him
                 being in a Weaver stance at the time he was shot . . . Someone
                 who had experience firing handguns would be more likely to
                 shoot using the popular Weaver stance.
              c. Additionally, the fact that the entry wounds were high up on
                 Rodney’s body indicates the likelihood that he was holding a
                 weapon at the time he received them . . . The trajectory of the
                 bullets that impacted Rodney, particularly those which indicate
                 he was most likely on his knees and leaning back, would be
                 consistent with him shooting at Lyn Vaughn while Robert
                 Foley shot Rodney.
              d. At least one of the bullet wounds to Lynn Vaughn was
                 consistent with Robert Foley’s version of events, wherein
                 Rodney Vaughn shot Lynn, while Lynn was charging towards
                 him. The slight downward angle of the bullet through Lynn’s
                 body is consistent with him leaning forward at the time he was
                 shot. The bullet to the back of Lynn’s head is similarly
                 consistent with Robert Foley’s version of events that Ronnie
                 Dugger fired a shot into the back of Lynn’s head while he was
                 lying on the floor. The slightly upward angle of the shot is
                 consistent with someone firing from close range to the back of
                 the head.
              e. The bullet holes in the wall of the living room are also
                 consistent with Robert Foley’s version of events. The two
                 bullets that were in the wall above the fish tank were more
                 likely to have come from the area where Robert Foley
No. 13-5459                              Foley v. White                             Page 11


                  indicated Rodney Vaughn was firing from (at Lynn Vaughn).
                  The bullet hole in the corner of the living room was more
                  consistent with someone firing from where Robert Foley was
                  standing. Had the bullet been fired from where Robert Foley
                  was standing, one would expect to see a shallow groove
                  running along the wall towards the hole where the bullet
                  gradually entered, due to the oblique angle. There was no
                  evidence that this was the case and, consequently, the hole is
                  consistent with someone firing from approximately where
                  Robert Foley alleged Lynn Vaughn was standing, towards
                  where Robert Foley alleged Rodney Vaughn was located.

Nixon affidavit, PID 289-291 (R. 127-1) (emphasis added).

       Clearly, full review by a ballistics and crime-scene-reconstruction expert would not
simply duplicate Hayes’s testimony.

       Lastly, the district court found that because Foley “now has the benefit of [Nixon’s]
expert opinion,” further analysis would be duplicative. PID 618. Foley’s Supplement to his
Motion for Expert Funding explained that Nixon performed only a limited review of some of the
case materials:

              By raising small amounts of money from family, friends, and activists,
       Mr. Foley was able to obtain a limited review of some of his case materials by
       [expert John Nixon]. The expert’s findings make clear that a full review of
       Mr. Foley’s case by a crime scene reconstruction expert and ballistics expert are
       reasonably necessary for Mr. Foley’s clemency proceedings.
       ....
              A complete review would entail (a) reviewing all the case materials, rather
       than the limited materials Nixon was able to review for the limited amount of
       money raised by Mr. Foley; (b) producing diagrams of the projectiles based on
       witnesses’ testimony and the autopsy reports; and (c) producing a computer
       animation of events based on witnesses’ testimony and the autopsy reports.

PID 287 (emphasis added). Because Foley raised only limited funds and Nixon thus did not
review all the case materials, Foley has adequately shown that the service requested, a ballistic
and crime-scene reconstruction expert, is “reasonably necessary to provide the Governor and
Board of Pardons and Paroles the information they need in order to determine whether to
No. 13-5459                              Foley v. White                             Page 12


exercise their discretion to extend grace to the petitioner in order to prevent a miscarriage of
justice.” Matthews, 807 F.3d at 760 (quoting Brown, 762 F.3d at 460).

       The district court’s remaining reason for denying Foley expert funds under § 3599,
unfavorable federal and state adjudications, is based on an improper legal standard not applicable
to clemency proceedings. Matthews, 807 F.3d at 761. The district court’s opinion relied on
Foley’s failure to convince the Kentucky Supreme Court and several federal Magistrate Judges
that expert funding was reasonably necessary and the fact that “[t]he jury, along with various
appellate and reviewing courts . . . found the overwhelming evidence of guilt far outweighed any
far-reaching allegation of self-defense and actual innocence.” PID 615-18.

       Even assuming, as the majority states, that the district court “independently reviewed the
record,” Maj. Op. at 4, its review clearly was not guided by Matthews. Because the district court
applied an incorrect legal standard to Foley’s § 3599(f) request for ballistics and crime-scene-
reconstruction expert funding, it abused its discretion. See Fautenberry, 572 F.3d at 268–69.

       I would remand to the district court for reconsideration in light of Matthews, particularly
given that the Kentucky Attorney General’s office notified this court in advance of argument that
it would no longer defend the district court ruling and “does not believe Kentucky has a stake in
Foley’s request for federal expert funds . . . to be used in the preparation of his state clemency
petition.” ECF 64 filed 4/18/2016.
