     Case: 19-70006      Document: 00514900612         Page: 1    Date Filed: 04/03/2019




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

                                      No. 19-70006                           FILED
                                                                          April 3, 2019
                                                                        Lyle W. Cayce
MARK ROBERTSON,                                                              Clerk

              Petitioner - Appellant

v.

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
                              USDC No. 3:13-CV-728


Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is a review of a limited remand. On December 21, 2017, this court
issued an opinion denying a certificate of appealability with respect to Mark
Robertson’s claim that his death sentence was based on materially inaccurate
evidence. Robertson v. Davis, 715 F. App’x 387 (5th Cir. 2017) (per curiam).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 19-70006
The panel reserved judgment on whether the district court abused its
discretion in denying funding requests under 18 U.S.C. § 3599(f).
      On March 21, 2018, the Supreme Court issued Ayestas v. Davis, which
rejected our Circuit’s standard for determining whether investigative funds
pursuant to § 3599(f) are “reasonably necessary.” 138 S. Ct. 1080 (2018).
Because the district court had not had the opportunity to consider how Ayestas
might apply to Robertson’s requests for funding, we remanded for the district
court to consider this issue in the first instance. Robertson v. Davis, 729 F.
App’x 361, 362 (5th Cir. 2018) (per curiam). Having carefully considered
Robertson’s arguments under the new standard, the district court again
rejected his funding request. We detect no error in this conclusion.
      “We review the denial of funding for investigative or expert assistance
for an abuse of discretion.” Wilkins v. Davis, 832 F.3d 547, 551 (5th Cir. 2016)
(quoting Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014)).
      The funding statute at issue provides:
      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 . . . .

      18 U.S.C. § 3599(f) (emphases added). In Ayestas, the Supreme Court
recently struck down the Fifth Circuit’s standard that “[r]easonably necessary
in this context means ‘that a petitioner must demonstrate ‘a substantial need’
for the requested assistance.’” Ward v. Stephens, 777 F.3d 250, 266 (5th Cir.
2015) (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004)). The Court
reiterated that “Congress has made it clear . . . that district courts have broad
discretion in assessing requests for funding.” Ayestas, 138 S. Ct. at 1094. In
directing lower courts on the funding determination, the Court explained:

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                                  No. 19-70006
        [T]he proposed services must be “reasonably necessary” for the
        applicant’s representation, and it would not be reasonable—in
        fact, it would be quite unreasonable—to think that services are
        necessary to the applicant’s representation if, realistically
        speaking, they stand little hope of helping him win relief. Proper
        application of the “reasonably necessary” standard thus requires
        courts 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 way.
Id.
       Robertson argues that the failure of his 2009 trial counsel to adequately
investigate the mitigating circumstances surrounding his mental health and
baleful life story rose to the level of ineffective assistance under the familiar
standard announced in Strickland v. Washington, 466 U.S. 668 (1984), as
construed by the Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003). He
seeks funding for further investigation into these issues.
       In the context of penalty phase mitigation in capital cases, the Supreme
Court has held that it can be unreasonable for counsel not to conduct further
investigations when he has information available to him that suggests
additional mitigating evidence may be available. See Porter v. McCollum, 558
U.S. 30, 39–40 (2009); Wiggins, 539 U.S. at 524–26; Williams v. Taylor, 529
U.S. 362, 395–96 (2000). But unlike the defense counsel described in Wiggins,
Porter, and Williams, and as explained in excruciating detail in the district
court’s nearly fifty pages of record-specific analysis, Robertson’s 2009 trial
counsel undertook an extensive investigation into Robertson’s background
searching for mitigating evidence and also made strategic decisions as to what
to present during the 2009 retrial. A substantial case in mitigation was in fact
then presented.



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                                       No. 19-70006
       After considering the district court opinion and the briefs on appeal, we
agree with the district court that the Wiggins claims Robertson proposes to
investigate “are not merely implausible, they are inane.” Because Robertson’s
proposed claims are meritless, they cannot satisfy the Ayestas standard—
requiring courts “to consider the potential merit of the claims that the
applicant wants to pursue [and] the likelihood that the services will generate
useful and admissible evidence.” 1 Ayestas, 138 S. Ct. at 1094, see, e.g., Ochoa
v. Davis, 750 F. App’x 365, 372 (5th Cir. 2018). Consequently, the district court
did not abuse its discretion.
       On remand, Robertson also sought to amend his habeas petition and the
district court held that the amended petition is not meaningfully different from
a request to file a second or successive petition. Robertson now seeks a
Certificate of Appealability (“COA”) on this question.
       “A COA will be granted only if the petitioner makes ‘a substantial
showing of the denial of a constitutional right.’” Resendiz v. Quarterman, 454
F.3d 456, 458 (5th Cir. 2006) (per curiam) (quoting 28 U.S.C. § 2253(c)). “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 v. Cockrell, 537 U.S. 322, 327
(2003).
       Our remand was limited—to determine whether Robertson was entitled
to funding under Ayestas. We did not vacate the district court’s judgment
denying Robertson federal habeas relief and on appeal we now affirm its


1The parties have extensively briefed whether Robertson’s claims are exhausted and whether
this causes a procedural default. The district court concluded that Robertson’s Wiggins claims
are probably unexhausted and subject to dismissal under the principles of procedural default.
This may well be true but given Robertson’s inability even to make out a plausible Wiggins
claim we need not address this conclusion.
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                                No. 19-70006
decision to once again reject Robertson’s funding request. We decline
Robertson’s invitation to consider what avenues for relief might have been
available had his request for funding succeeded. Given the current posture, no
jurist of reason would disagree with the district court’s conclusion that
Robertson’s amended petition represents a successive filing. Robertson’s
request for a COA is DENIED, the district court’s funding decision is
AFFIRMED, and Robertson’s motion to stay his execution is DENIED.




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