                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0242p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 JOHN FAUTENBERRY,
                                                 -
                            Petitioner-Appellant,
                                                 -
                                                 -
                                                      No. 09-3819
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 BETTY MITCHELL, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Cincinnati.
               No. 00-00332—James L. Graham, District Judge.
                                  Submitted: July 7, 2009
                            Decided and Filed: July 10, 2009
           Before: BATCHELDER, MOORE, and GILMAN, Circuit Judges.

                                   _________________

                                        COUNSEL
ON BRIEF: Dennis Lyle Sipe, BUELL AND SIPE CO., L.P.A., Marietta, Ohio, Tyson
Fleming, Randall L. Porter, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
Ohio, for Appellant. Justin M. Lovett, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
    BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined.
MOORE, J. (pp. 8-9), delivered a separate opinion concurring in the judgment.
                                   _________________

                                         OPINION
                                   _________________

        ALICE M. BATCHELDER, Circuit Judge. John Fautenberry is scheduled for
execution by the state of Ohio on July 14, 2009. He appeals the district court’s denial of his
motion under 18 U.S.C. § 3599(f) for funds to hire a neuropsychologist to assist in the
preparation of his state clemency petition. Because the district court did not abuse its
discretion in holding that such expert assistance is not reasonably necessary, we AFFIRM.


                                              1
No. 09-3819         Fautenberry v. Mitchell                                           Page 2


                                              I.

        Fautenberry has exhausted all available appeals, including both state and federal
habeas review. See Fautenberry v. Mitchell, 515 F.3d 614, 621-22 (6th Cir. 2008), cert.
denied, 129 S.Ct. 412 (2008). On June 2, 2009, Fautenberry filed ex parte a sealed motion
under 18 U.S.C. § 3599(f) for funds to compensate his counsel and to retain
neuropsychologist Dr. Michael Gelbort for the preparation of his state clemency petition.

        In support of his motion for expert funds, Fautenberry submitted the affidavit and
report of neuropsychologist Dr. Jeffrey Smalldon, who evaluated Fautenberry during his
state post-conviction proceedings in 1996 and concluded that he had a “mild — although by
no means insignificant” degree of brain impairment. Smalldon wrote that Fautenberry’s type
of brain impairment can “cause serious problems in such areas of day-to-day functioning as
impulse control; modulation of affect; planning; problem-solving; and the capacity to tolerate
frustration.” Additionally, Fautenberry presented: affidavits from family friends Kenneth
and Louise Corcoran, also taken in 1996, providing anecdotal evidence of head injuries that
Fautenberry had suffered as a child; medical records documenting injuries, including head
injuries, that Fautenberry had sustained; and Dr. Gelbort’s resume.

        At the district court’s direction, Fautenberry filed a proposed clemency budget, also
ex parte and under seal, on June 17, 2009. On June 23, 2009, the court issued a sealed order
denying Fautenberry’s motion for funds to hire Dr. Gelbort. Specifically, the court held that
Fautenberry’s motion was “long on the head injuries that [he] suffered and the manner in
which those injuries likely affected his day-to-day behavior . . . but short on an explanation
for why another neuropsychological assessment is reasonably necessary in this case.” On
June 25, 2009, the court approved the remainder of the expenses listed in Fautenberry’s
proposed budget. On July 1, 2009, Fautenberry filed his notice of appeal; in his brief filed
before this Court on July 7, 2009, he asks us to vacate the district court’s order, remand the
case for the authorization of funding, and stay his execution so that he can present Dr.
Gelbort’s findings to the governor of Ohio.
No. 09-3819         Fautenberry v. Mitchell                                             Page 3


                                              II.

        Fautenberry claims that the district court erred by denying his request, made pursuant
to 18 U.S.C. § 3599(f), for funds to retain a certain neuropsychologist to assist his attorney
with the preparation of his state clemency petition. Section 3599(f) provides, in pertinent
part:

        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).

        Due to the discretionary language in § 3599(f), we review the district court’s
decision for an abuse of discretion. Cf. Cornwell v. Bradshaw, 559 F.3d 398, 410 (6th Cir.
2009); Rosales v. Quarterman, 565 F.3d 308, 312 (5th Cir. 2009). “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.” Getsy v. Mitchell, 495 F.3d 295,
310 (6th Cir. 2007) (en banc) (internal quotation marks omitted). Moreover, we will find
that a district court has abused its discretion only when we have “a definite and firm
conviction that the trial court committed a clear error of judgment.” Ford Motor Co. v.
Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir. 2007).

        The district court considered Fautenberry’s request in light of § 3599(f) and
concluded, based on Fautenberry’s motion and supporting exhibits, that the service requested
was not “reasonably necessary” because Fautenberry had provided no reasons to explain
why it would be necessary:

                [Fautenberry]’s motion, however compelling at first glance, is long
        on the head injuries that [Fautenberry] suffered and the manner in which
        those injuries likely affected his day-to-day behavior in a number of facets,
        but short on an explanation for why another neuropsychological assessment
        is reasonably necessary in this case. It is apparent from [Fautenberry]’s own
        exhibits that Dr. Smalldon performed a comprehensive neuropsychological
        evaluation of [Fautenberry] in 1996.
No. 09-3819          Fautenberry v. Mitchell                                            Page 4


                Nowhere in [Fautenberry]’s motion for funds to retain the services
        of Dr. Michael Gelbort does [Fautenberry] allege or even suggest that Dr.
        Smalldon’s evaluation was faulty, incomplete, outdated, or otherwise
        unreliable. Nowhere does [Fautenberry] allege or even suggest how a new
        neuropsychological evaluation by Dr. Gelbort now might assist the Ohio
        Adult Parole Authority or the Governor of the State of Ohio in determining
        whether [Fautenberry] is entitled to clemency.
                Having reviewed [Fautenberry]’s motion and supporting exhibits, as
        well as the decisions issued by this [c]ourt and the Sixth Circuit denying
        [Fautenberry]’s request for habeas corpus relief, this [c]ourt finds itself
        unable to even conjecture why the services of Dr. Gelbort are reasonably
        necessary for [Fautenberry] to prove his case for clemency.
Fautenberry v. Mitchell, No. 1:00-cv-332, *4 (S.D. Ohio June 23, 2009) (paragraph breaks
inserted).

        On appeal, Fautenberry does not contend that the district court “applie[d] [an]
incorrect legal standard [or] misapplie[d] the correct legal standard”; rather, he contends that
the district court “relie[d] upon clearly erroneous findings of fact.” See Getsy, 495 F.3d at
310. Specifically, Fautenberry argues on appeal that the district court improperly relied on
the 1996 examination:

        [T]he District Court abused its discretion when it denied the [request] based
        upon the fact that Mr. Fautenberry had previously been examined by a
        neuropsychologist in 1996 [i.e., Dr. Jeffrey L. Smalldon, Ph.D.]. Mr.
        Fautenberry’s mental condition may well have changed in the last 13 years.
        Mr. Fautenberry wished to present to the Parole Board and the Governor an
        updated evaluation to demonstrate th[at] he would not be a threat if his
        sentence w[ere] reduced to life.
Apt.’s Br. at 7 (citations omitted). Fautenberry continues:
        [T]he District Court abuse[d] its discretion when it determined that Mr.
        Fautenberry had not proven that the facts supported the granting of funding.
        Given Mr. Fautenberry’s history of head trauma, and Dr. Smalldon’s post
        conviction diagnosis of brain impairment, the District Court abused its
        discretion when it denied [Fautenberry’s] motion for funding for a
        neuropsychologist.
Apt.’s Br. at 10 (citations omitted). Fautenberry goes on to argue that the court’s reliance
on the 1996 evaluation was erroneous because that evaluation is incomplete, outdated, and
unreliable.
No. 09-3819           Fautenberry v. Mitchell                                             Page 5


          But, based on the nature of this case and the nature of our review (abuse of
discretion), we are not called upon to decide whether the 1996 evaluation was actually
incomplete, outdated, or unreliable. See Workman v. Bredesen, 486 F.3d 896, 923-24 (6th
Cir. 2007) (Cole, J., dissenting) (“[S]o long as the district court acted within its sound
discretion, we may not reverse its judgment even if we would have decided the matter
differently.”). The question we must decide in this appeal is whether the district court, acting
on the information before it at the time, “committed a clear error of judgment.” See Ford
Motor, 487 F.3d at 468. That is, did Fautenberry provide the district court with the
arguments he now presses on appeal and, if so, do we have a “definite and firm conviction”
that the district court reached the wrong conclusion in its assessment of those arguments.
See id.

          In the text of his motion to the district court (“John Fautenberry’s Motion for Funds”
dated June 2, 2009), Fautenberry made only two references to Dr. Smalldon and the 1996
evaluation:

          “Dr. Smalldon, who evaluated Mr. Fautenberry in post-conviction[,]
          unequivocally concluded, ‘It is my opinion, offered with reasonable
          psychological certainty, that Mr. Fautenberry is brain impaired.’”
And:
          “Given Mr. Fautenberry’s history of head trauma, Dr. Smalldon’s post
          conviction diagnosis of brain impairment, and the findings of the Sixth
          Circuit, the approval of funding for a neuropsychologist is warranted in this
          case.”
Neither of these references indicates that Dr. Smalldon’s evaluation was incomplete,
outdated, or unreliable. Fautenberry also appended that evaluation (which is 15 pages long)
to his motion.

          The district court stated: “It is apparent from [Fautenberry]’s own exhibits that Dr.
Smalldon performed a comprehensive neuropsychological evaluation of [Fautenberry] in
1996.” Based on a review of Fautenberry’s motion and exhibits, we cannot find this
conclusion unreasonable.

          The district court offered two other statements in support of its decision:
No. 09-3819         Fautenberry v. Mitchell                                               Page 6


        “Nowhere in [Fautenberry]’s motion . . . does [he] allege or even suggest
        that Dr. Smalldon’s evaluation was faulty, incomplete, outdated, or
        otherwise unreliable.”
And:
        “Nowhere does [Fautenberry] allege or even suggest how a new
        neuropsychological evaluation by Dr. Gelbort now might assist the Ohio
        Adult Parole Authority or the Governor of the State of Ohio in determining
        whether [he] is entitled to clemency.”
Both of these statements are true.

        Fautenberry did not argue to the district court — nor did he present evidence or
authority that might have supported such an argument — that the results of Dr. Smalldon’s
1996 evaluation are outdated due to advancements in the field of neuropsychology or
changes in Fautenberry’s condition, or that a new evaluation might show that Fautenberry
now suffers brain impairment more severe than that diagnosed 13 years ago. Fautenberry
did not attempt to show that Dr. Gelbort’s expertise or methods would lead to a more
accurate diagnosis, nor did he point to any facts suggesting that his brain impairment has
worsened since his last evaluation. Fautenberry advanced no evidence from which the
district court could find that Dr. Gelbort’s evaluation would not be duplicative of information
already available to the state executives entertaining his clemency petition.

        Finally, the district court said: “this [c]ourt finds itself unable to even conjecture why
the services of Dr. Gelbort are reasonably necessary for [Fautenberry] to prove his case for
clemency.” Reading Fautenberry’s motion to the district court in light of his current
arguments on appeal, we can now understand that Fautenberry wanted Dr. Gelbort to provide
an “updated evaluation.”       But we can also understand that, without the benefit of
Fautenberry’s appellate brief, the district court was left without any explanation as to why
a new assessment was “reasonably necessary,” particularly in view of the fact that
Fautenberry had appeared to place such emphasis and reliance on Dr. Smalldon’s 1996
evaluation. If the district court was misled, as Fautenberry now claims, it was misled
because Fautenberry misled it or failed to show it the way. We cannot conclude that the
district court reached the wrong conclusion based on the information before it at the time.
No. 09-3819             Fautenberry v. Mitchell                                                       Page 7


         Based on the foregoing, we must conclude that the district court did not abuse its
discretion in denying Fautenberry’s request for fees pursuant to § 3599(f). This claim of
error lacks merit.

                                                    III.

         Fautenberry has asked this Court for a stay of execution to permit him to obtain the
                                                                                                  1
neurospsychological examination and then to present the results to the governor. He has
not, however, cited any legal authority upon which we could base a stay of the State’s
right to execute its judgment. Although “some minimal procedural safeguards” may
apply to state clemency proceedings, allowing federal judicial intervention where “a
state official flipped a coin to determine whether to grant clemency” or “arbitrarily
denied a prisoner any access to its clemency process,” Ohio Adult Parole Auth. v.
Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring) (emphasis in original),
we are not presented with such a situation here. Moreover, our determination that the
district court did not abuse its discretion in denying the motion for appointment of the
expert moots any claim for a stay.

                                                    IV.

         Accordingly, we AFFIRM the district court’s order denying funding for an
appointed neuropsychologist in Fautenberry’s state clemency proceedings, and we
DENY Fautenberry’s motion for a stay of execution.




         1
          As of this writing, Fautenberry has not filed a motion for a stay of execution with the district
court. He did ask for leave to file such a motion under seal, which the district court denied on July 7, 2009,
but he has not yet filed for a stay itself.
No. 09-3819         Fautenberry v. Mitchell                                          Page 8


                 __________________________________________

                     CONCURRING IN THE JUDGMENT
                 __________________________________________

        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment.
Because an accurate understanding of John Fautenberry’s current mental state is
essential to a determination of whether he is entitled to clemency, I believe that retention
of a neuropsychologist is reasonably necessary for Fautenberry’s representation during
his clemency proceedings. Fautenberry has a history of head trauma and suffers from
significant brain impairment, part of which was identified by a neuropsychological
evaluation performed in 1996. Now, thirteen years later, it is important that the Parole
Board and the Governor have a complete picture of Fautenberry’s current mental state,
including whether he still suffers from brain impairment. A stale evaluation performed
in 1996 does not serve this purpose. Even without evidence of specific changes, which,
in any event, could be discovered only through a current evaluation, it is obvious that
Fautenberry’s mental state would have changed in the past thirteen years he has spent
on death row.

        The Supreme Court recently made clear “that [18 U.S.C.] § 3599 authorizes
federally appointed counsel to represent their clients in state clemency proceedings and
entitles them to compensation for that representation.” Harbison v. Bell, --- U.S. ---, 129
S. Ct. 1481, 1491 (2009); see 18 U.S.C. § 3599(e). As part of this representation, “the
court may authorize the defendant’s attorneys to obtain” expert services “[u]pon a
finding that [such] services are reasonably necessary for the representation of the
defendant.” § 3599(f). Because a current picture of Fautenberry’s mental state clearly
is important to determining whether he should be executed, an updated
neuropsychological evaluation is reasonably necessary for his representation. The
majority is correct, however, that Fautenberry did not present this argument to the
district court. I therefore cannot say that the district judge abused his discretion based
on the record before him. Although I would not foreclose Fautenberry from presenting
No. 09-3819       Fautenberry v. Mitchell                                   Page 9


new arguments to the district court, I am constrained, based on this record and our
standard of review, to concur in the judgment.
