     Case: 17-70013      Document: 00514542551         Page: 1    Date Filed: 07/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-70013                        United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              July 5, 2018
MARK ROBERTSON,
                                                                            Lyle W. Cayce
              Petitioner - Appellant                                             Clerk


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 CLEMENT, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       On December 21, 2017, this court issued a nondispositive 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). The panel reserved




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-70013     Document: 00514542551     Page: 2   Date Filed: 07/05/2018



                                  No. 17-70013
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.” See 138 S. Ct. 1080 (2018).
Because the district court has not had the opportunity to consider how Ayestas
might apply to Robertson’s requests—and the district court’s subsequent
denials—for funding, we believe the issue is best considered by the district
court in the first instance. See, e.g., Sorto v. Davis, 716 F. App’x 366, 366 (5th
Cir. 2018); Frey v. Stephens, 616 F. App’x 704, 708 (5th Cir. 2015) (noting that
we have remanded habeas cases for reconsideration “where relevant binding
decisions were issued after the district court ruled”).
      Accordingly, we VACATE the district court’s denial of funding and
REMAND for reconsideration in light of Ayestas.




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