     Case: 12-70014       Document: 00512377509         Page: 1     Date Filed: 09/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 18, 2013

                                       No. 12-70014                        Lyle W. Cayce
                                                                                Clerk

BILLY JACK CRUTSINGER,

                                                  Petitioner–Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent–Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-703


Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner–Appellant Billy Jack Crutsinger was convicted of capital
murder and sentenced to death in Tarrant County, Texas. Crutsinger now
requests a certificate of appealability (“COA”) to appeal the district court’s denial
of his petition for federal habeas relief. For the following reasons, his request for
a COA is DENIED.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  Background
      On April 6, 2003, Crutsinger fatally stabbed eighty-nine-year-old Pearl
Magouirk and her seventy-one-year-old daughter, Patricia Syren. A Texas jury
convicted him of capital murder, and, based on the jury’s answers to the special
issues in the court’s charge, the trial judge sentenced him to death. The Texas
Court of Criminal Appeals (“TCCA”) affirmed the conviction and sentence on
direct appeal, and the U.S. Supreme Court denied Crutsinger’s petition for writ
of certiorari. Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App. 2006),
cert. denied, 549 U.S. 1098 (2006).
      While his direct appeal was pending, Crutsinger filed a state habeas
corpus application, raising eighteen claims for relief. On November 7, 2005, the
state trial judge issued findings of fact and conclusions of law recommending
that relief be denied. Two years later, the TCCA adopted the trial judge’s
findings and conclusions and denied relief. Ex parte Crutsinger, No. WR-63,481-
01, 2007 WL 3277524, at *1 (Tex. Crim. App. Nov. 7, 2007). Crutsinger then
sought federal habeas relief, and new counsel was appointed to represent him
in federal court.
      On May 8, 2008, before filing his federal habeas petition, Crutsinger
sought funding for investigative and expert assistance in the development of his
claim that his trial counsel was ineffective in failing to timely initiate a social
history investigation. The district court determined, however, that this specific
ineffective-assistance-of-counsel     (“IAC”)   claim   was     unexhausted     and
procedurally barred from review.         Crutsinger attempted to establish an
exception to the exhaustion requirement under 28 U.S.C. § 2254(b)(1)(B)(ii) by
arguing that circumstances existed that rendered the state corrective process
ineffective to protect his rights. Specifically, Crutsinger claimed that “during the
time that his state habeas application was pending, the general ineffectiveness
of state habeas counsel appointed throughout Texas rendered the entire state

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habeas process ineffective to protect the rights of death-row habeas petitioners.”
The court rejected this “innovative and far-reaching construction of th[e]
statutory exception” and instead denied the pre-petition funding request based
on “an abundance of case law establishing that the ineffective assistance of state
habeas counsel cannot justify a failure to comply with the exhaustion
requirement or excuse any resulting procedural default.”
      Crutsinger then filed a habeas petition under 28 U.S.C. § 2254, alleging
three grounds for relief, including the IAC claim for which he had previously
sought funding. Crutsinger alleged that (1) the trial court failed to suppress
evidence resulting from his illegal arrest in violation of the Fourth Amendment,
(2) his trial counsel provided ineffective assistance in failing to timely initiate a
social history investigation, which caused counsel to overlook evidence of his
mental impairments caused by alcohol addiction, head trauma, depression, and
low intelligence, and (3) actual innocence. After determining that Stone v.
Powell, 428 U.S. 465, 494 (1976), barred consideration of Crutsinger’s Fourth
Amendment claim, the court addressed the IAC claim.
      Though the court had found that the substance of the IAC claim was not
developed in state court, the Government did not assert a procedural bar based
on the failure to exhaust and instead argued the merits of the claim. Under
these circumstances, the court declined to apply a procedural bar sua sponte and
instead reviewed the claim de novo because “the record contain[ed] sufficient
facts to make an informed decision on the merits.” The court determined that
Crutsinger was unable to show either that his counsel’s performance fell below
an objective standard of reasonableness or that he was prejudiced by counsel’s
deficient performance. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
As a result, the court rejected Crutsinger’s IAC claim, and, finding that his
actual innocence claim also lacked merit, denied his habeas petition and denied
the COA.

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       Shortly thereafter, Crutsinger moved to alter the judgment under Federal
Rule of Civil Procedure 59(e). After the district court denied that motion,
Crutsinger initiated the present proceeding, requesting that this Court issue a
COA.
                                  Discussion
       Under the Antiterrorism and Effective Death Penalty Act of 1996,
petitioners may not appeal the denial of habeas relief without securing a COA.
28 U.S.C. § 2253(c)(1); Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003). To
obtain a COA, the petitioner must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller–El, 537 U.S. at 327.
       On review, we must issue a COA if “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
at 338. “[A] claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” Id. “This threshold inquiry does
not require full consideration of the factual or legal bases adduced in support of
the claims.” Id. at 336. It requires only “an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. For death penalty cases,
“any doubts as to whether the COA should issue are resolved in favor of the
petitioner.” Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008).
       Crutsinger requests a COA for his claim that his trial counsel provided
ineffective assistance by failing to adequately investigate and develop evidence
in all phases of the trial. Although Crutsinger presented an IAC claim in the
state habeas proceeding based on trial counsels’ alleged failure to investigate

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generally, the district court determined that the federal iteration of Crutsinger’s
IAC claim—one concerned with the timing of the investigation rather than the
general failure to adequately conduct one—had not been developed in state
court. The court nevertheless reviewed the claim de novo, declining to raise the
procedural bar sua sponte.       Our review, therefore, is limited to whether
reasonable jurists would find debatable or wrong the district court’s
determination of Crutsinger’s IAC claim.
A.    IAC Claim
      “The Sixth Amendment provides for the right to counsel, and the Supreme
Court has recognized that ‘the right to counsel is the right to effective assistance
of counsel.’” Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005) (quoting
Strickland v. Washington, 466 U.S. 668, 686 (1984)). To establish a denial of
that right, the petitioner must demonstrate (1) that counsel’s performance “fell
below an objective standard of reasonableness,” and (2) that the deficient
performance prejudiced the petitioner’s case. Strickland, 466 U.S. at 688–92.
Failure to satisfy either prong is fatal to an IAC claim.
      In evaluating Strickland’s first prong, counsel’s performance is measured
against an objective standard of reasonableness under prevailing professional
norms.   Rompilla v. Beard, 545 U.S. 374, 380 (2005). Because there are
countless ways to provide effective assistance, the petitioner must overcome “a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. “In judging the
defense’s investigation, as in applying Strickland generally, hindsight is
discounted by pegging adequacy to counsel’s perspective at the time
investigative decisions are made and by giving a heavy measure of deference to
counsel’s judgments.” Rompilla, 545 U.S. at 381 (internal quotation marks and
citations omitted).



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      During the underlying criminal proceedings, the trial court appointed, on
counsel’s motion, a forensic psychologist, Dr. Kelly Goodness, as a mitigation
specialist to investigate Crutsinger’s social history. In their affidavit to the state
habeas court, Crutsinger’s trial counsel explained that Dr. Goodness’s evaluation
would not have benefited Crutsinger at punishment and that the use of her
report would have allowed the State to present evidence based on its own
expert’s evaluation. The district court determined that both this decision and
the underlying investigation into Crutsinger’s social history were reasonable and
that, even if counsel’s performance had been deficient, Crutsinger failed to
establish that the performance prejudiced his case.
      Rather than challenge the substance of the district court’s determination,
Crutsinger now, as in his motion to alter the judgment, argues that the district
court misconstrued his IAC claim and denied relief on a weaker claim that he
never asserted. Specifically, he claims that his argument is that trial counsel
should have investigated further into his mental health based on the “red flags”
raised in Dr. Goodness’s report—not that trial counsel should have presented Dr.
Goodness’s testimony at trial. He claims that only “after further investigation
and sufficient development of evidence of brain impairment, and the psycho-
social history of Mr. Crutsinger, could counsel then make an informed decision
on whether to present such evidence or not.”
      Despite Crutsinger’s claim to the contrary, the district court addressed the
arguments that he raised in his habeas petition. The essence of Crutsinger’s
IAC claim was that trial counsel failed to timely investigate Crutsinger’s social
history and, because the investigation was conducted too late, trial counsel
lacked sufficient information to develop a viable strategy.           For example,
Crutsinger argued that a timely investigation would have revealed that one of
the critical themes running throughout the case was his alcohol addiction,
which, together with scientific information about the disease of alcohol addiction,

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would have provided a basis for trial counsel to (1) assert that Crutsinger’s
confession was nonvoluntary, (2) negate mens rea, and (3) offer a credible
response to the prosecution’s assertion that Crutsinger was “evil.” Similarly,
Crutsinger argued that Dr. Goodness’s report revealed that he had several
mental impairments and had suffered prior head trauma, both of which were
factors that, had they been discovered earlier, could have been used to undercut
the voluntariness of his confession and his criminal responsibility.
      The district court rejected these specific arguments. First, the court
determined that the investigation was timely and adequate. The court found
that Crutsinger’s assumption that trial counsel did not consult Dr. Goodness
until the day she issued her written report was contradicted by Dr. Goodness’s
indication that she would first make an oral report to trial counsel and prepare
a written report only if requested. Additionally, the court found that even if
Crutsinger could show that trial counsel made strategic decisions without the
benefit of Dr. Goodness’s investigation, he still could not establish prejudice.
The court found no evidence, either in the record or in the materials Crutsinger
submitted with his habeas petition, to support any of the defenses Crutsinger
claimed he could have asserted.
      It is only now in his application for a COA that Crutsinger asserts that his
true argument was that trial counsel should have investigated further upon
learning of certain “red flags” in Dr. Goodness’s report. But even if this were the
argument he presented in his habeas petition, the district court’s reasoning
encompasses it. The critical issue in both of Crutsinger’s arguments is whether
the investigation was reasonable, and the district court determined that it was.
As the district court noted,
      Counsel here hired a forensic psychologist who, with the assistance
      of a social worker and psychological associate, conducted a
      mitigation investigation that is documented in a twenty-three page
      report. That report is supported by interviews with Petitioner’s

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      friends and family, document review summaries, a criminal history,
      fourteen hours of clinical interviews with Petitioner, and the
      administration of nineteen different psychological instruments.

We find no reason to dispute the district court’s determination that this
investigation was reasonable. Indeed, Crutsinger himself does not challenge the
thoroughness of Dr. Goodness’s report, relying instead on the red flags within it
that should have alerted trial counsel of the need for further testing. Counsels’
decision to terminate the investigation, however, was made after a thorough
investigation by Dr. Goodness, and “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690; see also Wiggins v. Smith, 539
U.S. 510, 533 (2003) (“Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would
be to assist the defendant at sentencing.”).
      We find that the evidence supports the district court’s determination that
counsel conducted a thorough investigation.        Based on that investigation,
counsel made the strategic decision not to present Dr. Goodness’s testimony and
not to pursue further investigation. Though Crutsinger now challenges the
failure to pursue further investigation, he has not explained what the additional
investigation he requests would reveal nor how it would have changed the result
of his trial and sentence. Consequently, Crutsinger has failed to cast doubt on
the district court’s conclusion that “[c]ounsels’ investigation in this case was not
deficient, but was guided by sufficient information upon which a reasonable
strategic decision could be made.” Under these circumstances, fairminded
jurists could not disagree with the district court’s determination of Crutsinger’s
IAC claim. We therefore deny Crutsinger’s application for a COA.




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B.    Denial of Funding Under 18 U.S.C. § 3599
      Crutsinger next challenges the district court’s decision to deny him
funding for investigative and expert assistance in the development of his IAC
claim. Crutsinger’s request for funding is governed by 18 U.S.C. § 3599. Though
Crutsinger challenges the district court’s funding decision in his application, a
COA “is not necessary to appeal the denial of funds for expert assistance.”
Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). Instead, funding orders are
reviewed for abuse of discretion. Id.
      Section 3599 provides that a district court may authorize a defendant’s
attorneys to obtain investigative, expert, or other services upon a finding that
such services “are reasonably necessary for the representation of the defendant.”
18 U.S.C. § 3599(f).1 If the court finds that such services are reasonably
necessary, it “shall order the payment of fees and expenses therefor.” Id.
Reasonably necessary in this context means “that a petitioner must demonstrate
‘a substantial need’ for the requested assistance.” Riley v. Dretke, 362 F.3d 302,
307 (5th Cir. 2004) (quoting Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000)).
“A petitioner cannot show a substantial need when his claim is procedurally
barred from review.” Id. Similarly, the denial of funding will be upheld when
it would only support a meritless claim or when it would only supplement prior
evidence. Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009).
      The district court denied Crutsinger’s requested funding because
Crutsinger could not show at the time of his request that the claim sought to be
investigated was not procedurally barred from review. Crutsinger first argues
that this denial was improper because the justification behind it—that the claim
sought to be investigated was procedurally barred—is irreconcilable with the
court’s later decision to address the merits of his claim.                 In other words,


      1
          The statute also requires a showing of indigence, an issue not in dispute here.

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Crutsinger argues that it was improper for the district court to deny funding
based on a procedural bar only to later reach the merits of the claim, which had
to be presented without the benefit of the requested investigative funds. We
disagree.
      The district court’s decision to address the merits of the claim does not
establish an abuse of discretion for its prior funding decision. The court relied
on our well-established rule in denying funding to investigate a claim that would
be procedurally barred from review. See Riley, 362 F.3d at 307. It was only after
Crutsinger applied for habeas relief and the State did not seek to apply the
procedural bar that the court decided to reach the merits. The decision not to
apply the procedural bar sua sponte was within the district court’s discretion.
See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”); Magouirk v. Phillips, 144 F.3d
348, 360 (5th Cir. 1998) (“We conclude that a federal district court may, in the
exercise of its judicial discretion, raise procedural default sua sponte.”). That
decision, however, does nothing to undercut the justification for the initial denial
of funds—the claim the court reviewed was still unexhausted. See 28 U.S.C.
§ 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the State,
through counsel, expressly waives the requirement.”).
      Additionally, the court even implied that it was unnecessary to revisit its
prior funding decision when it determined that “the record contain[ed] sufficient
facts to make an informed decision on the merits.” Crutsinger has presented no
argument to contradict this point and does not argue that his IAC claim was in
fact exhausted. He simply asserts that “[h]ad the funding request been granted,
the petition would have been resolved in a different manner than it was.” This



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conclusory statement is insufficient to establish that the district court abused its
discretion in denying Crutsinger’s funding request.
       Crutsinger next argues that the district court’s decision to deny funding
was an unreasonable application of Martinez v. Ryan, 132 S. Ct. 1309 (2012). In
Martinez, the Supreme Court held,
       Where, under state law, claims of ineffective assistance of trial
       counsel must be raised in an initial-review collateral proceeding, a
       procedural default will not bar a federal habeas court from hearing
       a substantial claim of ineffective assistance at trial if, in the initial-
       review collateral proceeding, there was no counsel or counsel in that
       proceeding was ineffective.

132 S. Ct. at 1320.2 Crutsinger argues that after Martinez, the district court’s
justification for the denial of funds—that the ineffective assistance of state
habeas counsel could not excuse any procedural default—is no longer correct.
Martinez, however, was decided in 2012—four years after the district court
denied Crutsinger’s funding request.              As we have previously recognized,
Martinez did not establish a new rule of constitutional law to be applied
retroactively. See Adams v. Thaler, 679 F.3d 312, 322 n.6 (5th Cir. 2012) (noting
that the Martinez decision was an “equitable ruling”). As such, it has no bearing
on the district court’s decision to deny funding.
       In any event, even if Martinez applied to Crutsinger’s funding request, he
has failed to establish, or even attempt to establish, either that his state habeas
counsel was ineffective or that his underlying IAC claim is “substantial,” both
of which are required under Martinez.              Instead, he argues that Martinez
“obligated the district court to provide pre-petition funding” because it “tacitly


       2
         This rule applies in Texas, even though Texas does not preclude IAC claims on direct
appeal, because “the Texas procedural system—as a matter of its structure, design, and
operation—does not offer most defendants a meaningful opportunity to present a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino v. Thaler, 133 S. Ct. 1911,
1921 (2013).

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acknowledges that litigating IAC claims requires not merely an effective
attorney, but also one that had adequate resources to demonstrate the
underlying claim is a substantial one in order to overcome procedural default.”
Martinez, however, does not mandate pre-petition funding, nor does it alter our
rule that a prisoner cannot show a substantial need for funds when his claim is
procedurally barred from review. It provides only that “[i]nadequate assistance
of counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.”
Martinez, 132 S. Ct. at 1315. Without both a showing under Strickland that
state habeas counsel was ineffective and a demonstration that the underlying
IAC claim “has some merit,” id. at 1318, Martinez offers no relief from a
potential procedural default. Because Crutsinger has failed to show either, any
relief provided by Martinez would be unavailable to him.
                                  Conclusion
      For the foregoing reasons, we AFFIRM the district court’s denial of
Crutsinger’s request for investigative funds. Additionally, because reasonable
jurists could not disagree with the district court’s determination of Crutsinger’s
IAC claim, Crutsinger’s request for a COA is DENIED.




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