     Case: 13-70030    Document: 00512727404      Page: 1   Date Filed: 08/08/2014




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


                                  No. 13-70030                            FILED
                                                                     August 8, 2014
                                                                     Lyle W. Cayce
ARTHUR BROWN, JR.,                                                        Clerk

                                            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 Southern District of Texas


Before STEWART, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Texas death row inmate Arthur Brown, Jr., has exhausted all state and
federal habeas appeals. He has, however, filed a Texas state petition for
clemency and his execution has been stayed by the Texas courts. He moved
the federal district court to allow funds to hire a mitigation specialist to assist
him in his state clemency proceedings. Although Brown requested $7,500 in
his motion, his mitigation specialist estimated the investigation would cost
$20,000. The district court turned him down. He now appeals the district
court’s denial of his motion. We find no abuse of discretion in denying the
funding and AFFIRM the order of the district court denying Brown’s motion.
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                                      I.
      Brown was convicted of capital murder for his role in the murders of four
people. We described the crime in our previous opinion as follows:
            Rachel Tovar and her husband, Jose, were drug dealers in
      Houston, Texas. They supplied marijuana and cocaine to other
      drug dealers, including Brown and his associates, who were from
      Tuscaloosa, Alabama. On June 19, 1992, Brown traveled from
      Tuscaloosa to Houston, accompanied by Marion Dudley, Antonio
      Dunson, and Maliek Travis. They arrived at the Houston
      residence of Brown’s sister, Grace, early in the morning on June
      20.
            That evening, six people were bound and shot in the head at
      Rachel Tovar’s residence in Houston. Four of them died: Jessica
      Quinones, the pregnant common-law wife of Rachel Tovar’s son,
      Anthony; Jose Guadalupe Tovar, Rachel Tovar’s husband; Audrey
      Brown, one of Rachel Tovar’s neighbors; and Frank Farias, Rachel
      Tovar’s son. Rachel Tovar and Alexander Camarillo, also known
      as Nicolas Cortez Anzures, survived and testified at Brown’s trial.
      Both of them identified Brown and Dudley, whom Tovar knew,
      from previous drug deals, by the nicknames of “Squirt” and “Red,”
      as the shooters. Three of Brown’s sisters––Serisa Ann Brown,
      Grace Brown, and Carolyn Momoh––testified as witnesses for the
      State at the guilt-innocence phase. All three of them claimed that
      the police and prosecutors had threatened them in order to coerce
      their cooperation. Carolyn Momoh was held in contempt and
      incarcerated at one point during the trial for invoking the Fifth
      Amendment, despite the fact that she had been given immunity.
      After she eventually testified, she was convicted of perjury. The
      jury convicted Brown of capital murder.
Brown v. Thaler, 684 F.3d 482, 486 (5th Cir. 2012) (footnote omitted).
      At the punishment phase, the State presented evidence that Brown had
committed an armed robbery four years earlier, that he had extorted other
prisoners while in jail awaiting trial, and that he had assaulted a deputy at
the jail. Brown’s counsel presented evidence that he had a low IQ, suffered
from learning disabilities, and did not do well in special education classes.
They also presented the testimony of a law professor that prisoners become
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less violent as they get older. Trial counsel’s cross-examination of Brown’s
sister, Serisa Ann Brown, during the guilt-innocence phase of the trial also
resulted in the presentation of some mitigating evidence. She testified that
Brown had 32 brothers and sisters, that Brown’s mother was present in the
courtroom during the trial, that Brown was only 23 years old, that Brown had
three children, and that Brown was close to the mother of his three children.
      In the state habeas proceedings, Brown’s counsel obtained $2,500 from
the Texas Court of Criminal Appeals (TCCA) for a mitigation specialist. The
mitigation specialist, Lisa Milstein, traveled to Tuscaloosa, Alabama, where
she interviewed Brown’s parents, his brother, and his three sisters.          She
obtained an affidavit from Brown’s mother in which she stated that she drank
alcohol excessively during her pregnancy with Brown. Brown’s state habeas
counsel sought an additional $2,700 for Milstein to complete her investigation.
That request was supported by Milstein’s statement in which she outlined the
evidence she had discovered and described the evidence she wanted to develop
through additional investigation.      The state court denied the additional
funding request.
      In his state habeas application, Brown claimed that trial counsel
rendered ineffective assistance in the investigation and presentation of
mitigating evidence. As support for his claim, Brown relied on the affidavit of
his mother, in which she described her drinking while she was pregnant with
him, and the affidavit of mitigation specialist Milstein, describing her
investigation into Brown’s background. We described the contents of Milstein’s
affidavit in our previous opinion, as follows:
      Milstein stated that Brown’s mother, Joe Mae Brown, . . . told
      Milstein that when Brown was three years old, he fell from a swing
      and struck his head on a cement porch. Mrs. Brown took him to a
      hospital, where the attending physician determined that he had a
      concussion. Milstein stated that Mrs. Brown told her that Brown

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 had headaches two to three times a week for several months after
 the concussion, but they never took him for a follow-up visit with
 the doctor. Mrs. Brown also told Milstein that she was married to
 Brown’s father when Brown was born, but that they divorced when
 he was twelve years old; that during the marriage, Brown’s father
 beat her; that Brown was close to his father, and she started
 having problems with Brown after the divorce; and that Brown
 threatened to commit suicide by jumping out of a window at his
 school.
        According to Milstein, she did not learn of Brown’s mother’s
 history of alcohol abuse while interviewing Mrs. Brown, but
 learned of it later from interviews with other family members.
 Milstein stated that Brown’s sister, Serisa, told her that Mrs.
 Brown often went out drinking at night, leaving the children alone
 at home, and returning heavily intoxicated in the early morning.
 Sometimes when she returned home she woke the children and
 made them pray throughout the rest of the night. As a result, the
 children were frequently tired at school. According to Milstein,
 Grace Brown, another of Brown’s sisters, stated that Brown was
 exposed to his mother’s drinking as a child and was embarrassed
 by her appearance in public while drunk. Milstein said that Grace
 also told her that after the divorce, their mother’s drinking friends
 came around more often.
       Milstein stated that when she confronted Mrs. Brown, Mrs.
 Brown admitted that she drank on a daily, or near daily, basis;
 that she drank heavily throughout her pregnancy with Brown; and
 that she obtained homemade bootleg whiskey from one of her
 sisters. Milstein believed that Mrs. Brown was likely an alcoholic.
 In her handwritten affidavit, Mrs. Brown stated that she drank
 while pregnant with Brown, at least every weekend and often
 during the week. She estimated that she consumed at least a pint
 of bootleg whiskey or brandy. Milstein believed that Mrs. Brown’s
 alcohol abuse during her pregnancy with Brown was an important
 mitigating fact, because it might have caused organic brain
 damage called Fetal Alcohol Syndrome or Fetal Alcohol Effect.
       Milstein reported that she learned from her investigation
 that Brown had an impoverished upbringing. After his parents’
 divorce, he lived with his mother and three other siblings in a
 small apartment in a poor area of Tuscaloosa, in a neighborhood
 that contained drugs and violence. According to Milstein, Brown’s

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      childhood was one marked by deprivation, including lack of food,
      clothing, guidance, and a father figure. Brown was devastated by
      his parents’ divorce and was left in the hands of a drunken and
      abusive mother.
            Milstein stated that Brown had a stable relationship in
      Tuscaloosa with his common-law wife and that he worked at
      legitimate jobs to provide for her and their three children. Milstein
      stated that Brown’s sister Grace told her that Brown had an
      intense work ethic and had on occasion worked two jobs at once to
      support his family. Milstein reported that each of Brown’s sisters
      told her that Brown’s trial counsel did not ask them any questions
      regarding mitigating evidence.
684 F.3d at 493–94.
      The TCCA denied Brown’s state habeas application. Ex parte Brown,
No. WR-26178-02, 2008 WL 2487788 (Tex. Crim. App. June 18, 2008)
(unpublished).
      In his federal habeas petition, Brown claimed that the state courts
violated his constitutional rights by failing to provide additional funds and that
trial counsel rendered ineffective assistance by not putting the contents of the
two affidavits into evidence at trial. The district court held that the state
habeas court’s decision to deny the ineffective assistance claim was not
contrary to, or an unreasonable application of, federal law. Brown v. Thaler,
No. H-09-74, 2011 WL 798391 (S.D. Tex. Feb. 28, 2011) (unpublished). The
district court stated that there was not a reasonable probability that the jury
would have made a different assessment of Brown’s moral culpability had his
trial counsel presented the evidence that Brown claimed should have been
presented, as described in the affidavits of Milstein and his mother. It denied
habeas relief and denied a certificate of appealability (COA).
      Brown requested a COA from this court for his claim that his trial
counsel rendered ineffective assistance by failing to investigate available
mitigating   evidence    concerning   his   difficult   childhood   and   troubled

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                                 No. 13-70030
background, including his mother’s alcohol abuse, by failing to retain mental
health experts to evaluate his low intelligence, and by failing to explore
whether he suffers from Fetal Alcohol Spectrum Disorder. This court denied
Brown’s request for a COA.      684 F.3d 482.     The Supreme Court denied
certiorari. Brown v. Thaler, 133 S. Ct. 1244 (2013).
      After Brown’s execution was scheduled, he filed in the district court an
ex parte motion for authorization of funding and for appointment of a
mitigation investigator to assist in clemency proceedings. He asked the district
court to appoint Nicole VanToorn, a mitigation specialist, at an estimated cost
of $20,000, to complete the investigation that Milstein started in the state
habeas proceedings. He sought to develop a complete life and social history,
including evidence of poverty, family violence, exposure to drugs and alcohol
during childhood, and brain impairments caused by his mother’s excessive
drinking during her pregnancy with him. The district court denied Brown’s
request for funds, holding that he had not shown that the proposed
investigation is reasonably necessary for the purposes of clemency.
      Brown filed a clemency petition on October 7, 2013. The State withdrew
the execution date in order to allow Brown to seek retesting of certain trial
evidence, and Brown withdrew the clemency petition. This appeal is not moot,
however, because of the likelihood that the State will reschedule Brown’s
execution.
                                      II.
      Brown argues that the district court abused its discretion in denying
funds for a mitigation specialist. He contends that the court mischaracterized
his proposed investigation as a request to obtain affidavits from the witnesses
Milstein had previously identified and interviewed. Instead, he maintains that
his proposed investigation was designed to follow up on the leads that Milstein
had uncovered and to obtain first-hand witness accounts concerning his
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upbringing and family history. He asserts that Milstein’s affidavit indicates
that there are numerous red flags that more important mitigating evidence
exists and should be developed and presented in clemency proceedings, and
that it is unfair to limit him to the evidence that Milstein uncovered in 1998,
because her investigation was incomplete and does not accurately and fully
portray his upbringing and family history. Brown contends further that the
district court substituted its judgment concerning Brown’s entitlement to
clemency for that of the Parole Board and Governor. He points out that the
Board may consider defects in the justice system, as well as questions of mercy
and moral culpability, untethered by the legal standards applicable in prior
judicial proceedings.
      We review the denial of funding for investigative or expert assistance for
an abuse of discretion. Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009);
Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). In Harbison v. Bell, 556
U.S. 180, 183 (2009), the Supreme Court held that 18 U.S.C. § 3599 authorizes
federally funded counsel appointed to represent an indigent state prisoner in
federal habeas proceedings to represent him in subsequent state clemency
proceedings.
      Section 3599 provides further that
      Upon a finding that investigative, expert, or other services are
      reasonably necessary for the representation of the defendant,
      whether in connection with issues relating to guilt or the sentence,
      the court may authorize the defendant’s attorneys to obtain such
      services on behalf of the defendant and, if so authorized, shall
      order the payment of fees and expenses therefor under subsection
      (g).
18 U.S.C. § 3599(f) (emphasis added). Subsection (g) provides that
      Fees and expenses paid for investigative, expert, and other
      reasonably necessary services authorized under subsection (f)
      shall not exceed $7,500 in any case, unless payment in excess of
      that limit is certified by the court . . . as necessary to provide fair
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      compensation for services of an unusual character or duration, and
      the amount of the excess payment is approved by the chief judge
      of the circuit.
18 U.S.C. § 3599(g)(2).
      In addressing requests for funding for expert or investigative assistance
in federal habeas proceedings, this court has interpreted “reasonably
necessary” to mean that the petitioner must show that he has “a substantial
need” for the requested assistance. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.
2004). In the federal habeas context, we have held that a district court may
deny an inmate’s request for funds “when a petitioner has (a) failed to
supplement his funding request with a viable constitutional claim that is not
procedurally barred, or (b) when the sought-after assistance would only
support a meritless claim, or (c) when the sought after assistance would only
supplement prior evidence.”       Smith, 422 F.3d at 288 (citations omitted)
(addressing request for funds to obtain the assistance of an expert psychologist
in federal habeas proceedings).
      The district court noted that questions about the procedural adequacy of
a claim have no bearing on the clemency process, but it nevertheless concluded
that an inquiry into the merits of the proposed investigation still applies to
requests for funds to support clemency. Therefore, it held that Brown was
required to show that the proposed investigation would not just supplement
prior evidence or support meritless claims. The district court held that Brown
had not shown that federal funds for a mitigation investigation, especially one
as expensive as the one he proposed, were reasonably necessary for the
purposes of clemency. Although Brown requested only $7,500 in his motion,
his mitigation specialist estimated that the investigation would cost $20,000.
The court pointed out that the estimated cost of the investigation was nearly
three times the statutory limit of $7,500 and that, for funds over that limit,

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Brown must show that the requested assistance is of “unusual character or
duration.” 18 U.S.C. § 3599(g)(2). The court found that Brown had not shown
what mitigating evidence remains undiscovered and that he only sought to
amass more, not fundamentally different, mitigation evidence.         The court
stated that, other than interviewing more witnesses, Brown had not shown
what information was missed by Milstein. Further, he did not propose any
mitigation theory that exceeded the contours of the affidavits he presented on
federal habeas review and his request for investigative assistance followed the
same mitigating avenues outlined in Milstein’s and his mother’s affidavits.
The court concluded that it was speculative whether additional investigation
would uncover information different from that contained in Milstein’s report.
The court concluded that federal courts have no obligation to authorize fishing
expeditions and that federal law does not authorize funding for speculative
investigation in the hopes that Brown may turn up something new.
      Our court has not addressed a request for funding for investigative
services in the clemency context. In determining whether such services are
“reasonably necessary,” consideration must be given to the nature and purpose
of clemency proceedings.    The clemency process takes place only after all
judicial proceedings have been completed.       In capital cases, such judicial
proceedings include, at a minimum, trial, direct appeal, state post-conviction
review, and federal habeas review, in all of which proceedings indigent
prisoners are provided with legal representation and investigative and expert
assistance at taxpayer expense. Clemency “proceedings are a matter of grace
entirely distinct from judicial proceedings.”     Harbison, 556 U.S. at 192.
“Clemency is deeply rooted in our Anglo-American tradition of law, and is the
historic remedy for preventing miscarriages of justice where judicial process
has been exhausted.” Herrera v. Collins, 506 U.S. 390, 411–12 (1993) (footnote
omitted). Thus, when a petitioner requests funds for investigative services for
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                                 No. 13-70030
the purpose of clemency proceedings, the petitioner must 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. Accordingly, it was appropriate for the
district court to consider the merits of the proposed investigation and to
consider whether the proposed investigation would only supplement prior
evidence that had already been considered in the judicial proceedings and was
thus available to the Board and the Governor.
      We hold that the district court did not abuse its discretion in denying
Brown’s request for funds. Brown sought funds for the purpose of completing
the investigation commenced by Milstein in the state habeas proceedings, to
develop evidence of poverty, family violence, exposure to drugs and alcohol
during childhood, and brain impairments caused by his mother’s excessive
consumption of alcohol during her pregnancy. Although Milstein estimated
that she could complete her investigation in 54 hours, Brown requested
authorization for nearly four times that number of hours for the proposed
investigation by VanToorn. As the district court observed, there can be little
doubt but that the facts of Brown’s crime will weigh heavily in his clemency
proceedings. Those facts are brutal: Brown and his accomplices bound and
shot six people in the head, execution-style.    Although two of the victims
survived, one of the four who died was a nearly nine-months pregnant
teenager. In his request for funds, Brown offered little beyond speculation that
the proposed additional investigation would uncover some information
different from that Milstein described in her report and affidavit. Brown failed
to demonstrate that the proposed investigation by VanToorn was reasonably
necessary to provide the Board of Pardons and Paroles and the Governor with
material information beyond that already adduced by Milstein. Accordingly,
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the district court did not abuse its discretion by denying funding for such
investigation.
                                      III.
      Brown has not demonstrated that the funds he requested for
investigative services are reasonably necessary for clemency proceedings.
Accordingly, the district court did not abuse its discretion by denying the
requested funds. The order of the district court is therefore
                                                                   AFFIRMED.




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