    Case: 17-70018       Document: 00514586057        Page: 1   Date Filed: 08/03/2018




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

                                     No. 17-70018                          FILED
                                                                      August 3, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk

BILLY JACK CRUTSINGER,

                                                Petitioner−Appellant,

versus

LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                                Respondent−Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas




Before SMITH, OWEN, and GRAVES, Circuit Judges. *
JERRY E. SMITH, Circuit Judge:

     Billy Crutsinger is a Texas inmate sentenced to death for capital murder.
See Crutsinger v. State, 206 S.W.3d 607, 608–09 (Tex. Crim. App. 2006). He
requested $500 in funding under 18 U.S.C. § 3599 for a preliminary review of



     *   Judge Graves concurs in the judgment only.
     Case: 17-70018       Document: 00514586057         Page: 2    Date Filed: 08/03/2018



                                      No. 17-70018
DNA evidence. The district court denied the request, deeming the funds not
“reasonably necessary” under the statute. Discerning no abuse of discretion,
we affirm.

                                             I.
       The district court ably summarized the relevant facts:
          Crutsinger’s crime involved the stabbing deaths of 89-year-old Pearl
       Magourik and her 71-year-old daughter, Patricia Syren, in their Fort
       Worth home. Both victims suffered multiple stab wounds and had their
       throats cut. A broken knife was found in the victims’ bathroom, and
       blood evidence suggested the killer had been injured when it broke.
       Syren’s Cadillac was taken from the home and later found abandoned at
       a bar. A DNA analyst testified at trial about biological samples taken
       from the broken knife, the victims’ clothing, the interior of the aban-
       doned Cadillac, men’s clothing found in a trash dumpster near the aban-
       doned Cadillac, and blood stains throughout the victims’ home and gar-
       age. The analyst associated some samples with either Crutsinger or the
       victims, but she also identified “mixture” samples containing DNA asso-
       ciated with both Crutsinger and one or both victims.
Crutsinger sought and was denied relief on direct appeal and in state and
federal habeas corpus proceedings. 1

       In April 2017, Crutsinger filed a motion for funding under § 3599.
Attached was a letter from the district attorney’s office explaining that Crut-
singer’s case “may potentially be impacted” by a change in the DNA-mixture
interpretation protocol and the FBI’s “recent amendment of its population
database.” The letter included a lab review identifying two samples affected
by the protocol, both found in the dumpster by Crutsinger’s motel: a stain on
the pocket of a denim shirt, which initial testing suggested was a mixture of
the victims’ DNA, and a stain on the pocket of denim shorts, which testing



       1 See Crutsinger v. Stephens, 576 F. App’x 422, 422 (5th Cir. 2014) (denying request
for a certificate of appealability and summarizing earlier proceedings), abrogated by Ayestas
v. Davis, 138 S. Ct. 1080, 1093−94 (2018).
                                             2
     Case: 17-70018       Document: 00514586057         Page: 3    Date Filed: 08/03/2018



                                      No. 17-70018
showed was a mixture of the victims’ and Crutsinger’s DNA. 2

       The motion also appended a second letter from the district attorney
explaining it was unable to obtain a reinterpretation of these DNA-mixture
profiles because the medical examiner’s office was no longer proficiency-tested
for the relevant protocols. The district attorney’s office clarified that it would
“seek[] an execution date” for Crutsinger regardless, because “significant DNA
evidence not impacted by the changed mixture interpretation protocol [and
significant non-DNA evidence] inculpates” him.

       In his motion, Crutsinger requested $500 so that “Bode Cellmark, a Lab-
Corp Specialty Testing Group . . . [can] conduct an initial review and screening
of the bench notes/data underlying the State’s . . . letter concerning . . . the
DNA mixture profiles” from the test areas in question, and Crutsinger advised
that he might seek additional funding to perform the actual testing.                     He
claimed generally that the “request is reasonably necessary for investigating
issues related to [his] guilt, and is relevant to his representation in executive
clemency and in potential applications for a writ of habeas corpus”; yet he
failed to explain, with even the slightest degree of specificity, how further
review and testing of the relevant DNA profiles might improve the prospect of
either kind of relief.
       The district court denied the motion on the alternative grounds that
(1) the DNA review fell outside of the scope of § 3599 and (2) the requested
services were not reasonably necessary for Crutsinger’s representation, as he
had failed to “identify a viable constitutional claim that the DNA expert would
be used to develop” or how it might support that claim. On the latter point,



       2 Crutsinger adds that the state identified a “sample from Syren’s shorts from which
Crutsinger could not be excluded,” which bore a “deficiency” “related to a random match prob-
ability calculation.”
                                             3
     Case: 17-70018       Document: 00514586057         Page: 4     Date Filed: 08/03/2018



                                       No. 17-70018
the court noted that “the absence of a DNA expert does not prevent Crutsinger
from claiming he is factually innocent[,] [n]or does it prevent him from articu-
lating how his exclusion from a DNA sample could demonstrate his actual
innocence.” The court was careful to explain that it was “not requiring Crut-
singer to show a ‘substantial need’ for the requested DNA services,” but Crut-
singer had failed to identify a viable claim or even “discuss the evidence that
would be subjected to the new protocol.” The court thus rejected his “request
to fund a fishing expedition.” Crutsinger appeals.

                                             II.
       “We review the denial of funding for investigative or expert assistance
for an abuse of discretion.” 3 Section 3599(a) authorizes federal funding for
petitioners who face the prospect of death and are “financially unable to obtain
adequate representation or investigative, expert, or other reasonably neces-
sary services.” To merit funding, expert and investigative services, such as the
kind requested here, must be “reasonably necessary for the representation of
the [applicant].” § 3599(f).

       As noted above, the district court held that Crutsinger’s motion failed to
show reasonable necessity because it identified no constitutional claim the
additional funding might conceivably support, nor did it explain how the
results of review and further DNA testing might advance such a claim. 4

       That assessment coheres neatly with the Supreme Court’s most recent
pronouncements in Ayestas.               The Court explained that “[a] natural


       3 Wilkins v. Davis, 832 F.3d 547, 551 (5th Cir. 2016) (quoting Brown v. Stephens,
762 F.3d 454, 459 (5th Cir. 2014)); Ayestas, 138 S. Ct. at 1094 (“[D]istrict courts have broad
discretion in assessing requests for funding.”).
       4 Because we agree that Crutsinger failed to show the funding was reasonably
necessary, we need not address the district court’s alternative holding that the requested
review falls outside of the scope of § 3599.
                                              4
        Case: 17-70018    Document: 00514586057          Page: 5     Date Filed: 08/03/2018



                                       No. 17-70018
consideration informing the exercise of [the district court’s] discretion [under
§ 3599] is the likelihood that the contemplated services will help the applicant
win relief” and that “[p]roper application of the ‘reasonably necessary’ standard
. . . requires courts to consider the potential merit of the claims that the
applicant wants to pursue.” Ayestas, 138 S. Ct. at 1094. Though the Court was
careful to add that “a funding applicant must not be expected to prove that he
will be able to win relief,” it emphasized that the touchstone of the inquiry is
“the likely utility of the services requested” and that “§ 3599(f) cannot be read
to guarantee that an applicant will have enough money to turn over every
stone.” Id. (emphasis added). Even the petitioner in Ayestas conceded that “an
applicant must ‘articulat[e] specific reasons why the services are warranted’—
which includes demonstrating that the underlying claim is at least ‘plausible.’”
Id. 5

         Crutsinger resists Ayestas on three bases, none persuasive. First, he
suggests § 3599(f) “does not require [that he] identify a viable constitutional
claim” and that Ayestas is distinguishable because it was “about authorization
of auxiliary services in a habeas corpus proceeding in which the habeas petition
had already been filed.” That distinction is unpersuasive. Ayestas offers gen-
eral guidance on the meaning of “reasonable necessity,” with the touchstone
being the “utility” of the service to prospects of eventual relief. That Crutsinger
“does not have a pending habeas corpus petition” does not relieve him of the
burden to explain how funding might conceivably advance his position. And of
course, that burden demands more than a gesture toward the state’s
abundance of caution.


         5Accord United States v. Hamlet, 480 F.2d 556, 557 (5th Cir. 1973) (per curiam)
(upholding trial court’s refusal to fund psychiatric services based on the conclusion that “the
request for psychiatric services was . . . lacking in merit” because there was “no serious
possibility that appellant was legally insane at any time pertinent to the crimes committed”).
                                              5
    Case: 17-70018    Document: 00514586057       Page: 6   Date Filed: 08/03/2018



                                   No. 17-70018
      Alternatively, Crutsinger claims that, “because the development is foren-
sic,” the lawyer “is in no position to posit what constitutional claims, if any,
may flow from it.” The implied suggestion is that lawyers lack the necessary
imagination and forethought to opine plausibly on how the DNA evidence
might be relevant to Crutsinger’s case. The district court rightly dismissed
that view as facially untrue. Lawyers are well positioned to forecast the poten-
tial legal relevance of further review and forensic investigation.

      Finally, Crutsinger claims his lawyer must fully “understand the facts of
his case—including how subsequent changes in forensic science relevant to his
case may impact it—before asking the executive to grant him clemency.” But
petitioners cannot invoke clemency to end-run Ayestas’s emphasis on the
“utility” of further investigation and expert involvement.           See Ayestas,
138 S. Ct. at 1094.   Doing so would directly thwart Ayestas’s admonition
against “fishing expedition[s].”      See id. (quoting United States v. Alden,
767 F.2d 314, 319 (7th Cir. 1984)).

      Neither in the district court nor in his briefing on appeal does Crutsinger
explain how further review and DNA testing could conceivably support claims
for relief or a case for clemency. The district court was thus well within its
discretion to deny funding.

      AFFIRMED.




                                         6
