     Case: 20-70002      Document: 00515346136         Page: 1    Date Filed: 03/16/2020




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

                                                                               FILED
                                      No. 20-70002                        March 16, 2020
                                                                          Lyle W. Cayce
JOHN HUMMEL,                                                                   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. 4:16-CV-133


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       In December 2009, John Hummel murdered his pregnant wife, Joy
Hummel; his daughter, Jodi Hummel; and his father-in-law, Clyde Bedford. 1
Sentenced to death in 2011, his execution date was set on November 19, 2019,
for March 18, 2020. On February 3, 2020, with his direct appeal and habeas



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 Hummel v. State, 2013 WL 6123283, at *1–4 (Tex. Crim. App. Nov. 20, 2013)
(detailing the facts of Hummel’s crimes).
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proceedings exhausted, he sought $20,000 in funding under 18 U.S.C. § 3599(f)
to secure two experts to bolster his petition for clemency. He appeals the
district court’s partial grant of federal funding for his state clemency
proceedings and seeks a stay of execution should our appeal remain pending
by March 18. He also files an “Emergency Supplement to the Motion for a Stay
of Execution,” which is best understood as an additional stay motion related to
administrative difficulties caused by the COVID-19 virus.
                                             I.
      A court can authorize funding for “investigative, expert, or other
services” that are “reasonably necessary for the representation of the
defendant, whether in connection with issues relating to guilt or the
sentence.” 2 Such fees “shall not exceed $7,500 in any case, unless payment in
excess of that limit is certified by the court . . . and the amount of the excess
payment is approved by the chief judge of the circuit.” 3 We review a denial of
a funding motion under a highly deferential abuse of discretion standard. 4 “A
natural consideration informing the exercise of that discretion is the likelihood
that the contemplated services will help the applicant win relief.” 5 “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.” 6
                                            II.
      The first of Hummel’s requested experts, Dr. William Brown, prepared a


      2 18 U.S.C. §3599(f).
      3 Id. § 3599(g)(2).
      4 Crutsinger v. Davis, 898 F.3d 584, 586 (5th Cir. 2018).
      5 Ayestas v. Davis, 138 S.Ct. 1080, 1092 (2018).
      6 Id.

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sociological report on the influence of the Military Total Institution (“MTI”) on
Hummel’s behavior. This report was submitted to the Texas Board of Pardons
and Paroles after the district court found the $4,000 sought for his services
“reasonably necessary.”
      The second requested expert, Dr. Robert Stanulis, is a forensic
psychologist and neuropsychologist who would perform a risk assessment of
Hummel. Hummel hopes to use Stanulis’s work to press the idea that he does
not pose a future danger. Hummel sought $16,000 to pay Stanulis, but the
district court found Hummel had not adequately explained how Stanulis’s
testimony would differ from that of Hummel’s trial expert, Dr. Antoinette
McGarrahan, or whether a local expert who did not require four days of travel
expenses was available. Further, the district court viewed this potential
evidence as “double-edged.” It tended to establish that Hummel, for his PTSD
and as a product of MTI, poses a greater risk than would a murderer suffering
from the personality disorders the trial expert McGarrahan identified as
potential explanations for Hummel’s conduct.
      In an order entered without prejudice, the district court denied any
monies beyond the statutory cap of $7,500 to hire Brown “and a qualified
mental health expert of [Hummel’s] choosing[,]” explaining that the issue “is
not the reasonableness of the proposed mental health services per se; it is
rather whether the services of a highly compensated out-of-state expert are
reasonably necessary to perform the type of limited-scope risk assessment
[Hummel] identifies.”
      Hummel moved for reconsideration, asserting that he could not find a
qualified local expert as the possible candidates have left the state and would
offer no cost savings as compared to Stanulis. Hummel urged that Stanulis
could perform a narrower version of the risk assessment in fewer hours and
could thus incur fewer costs. But in the district court’s view, this “new price
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tag . . . appears to be within the range of funding previously granted”—
meaning the $3,500 portion of the $7,500 award reserved for mental-health
services. The court listed several defects in Hummel’s motion, including the
lack of a specific updated sum needed to complete the requested testing 7 and
the uncertain nature of what a “risk assessment entails.” Like the original
motion, the reconsideration motion was denied without prejudice.
                                          III.
      The State first argues that we lack jurisdiction over this appeal as it
seeks review of an order that is not final; that both denials were without
prejudice and noted unanswered questions for Hummel to address in
subsequent petitions. The State further argues that the appeal is moot because
Hummel has already filed his clemency petition, which was due February 26
with supplementation due March 3. The Texas Administrative Code requires
that “[a]ll supplemental information not filed with the application . . . must be
submitted . . . not later than the fifteenth calendar day before the execution is
scheduled.” 8
      We find that the order appealed from, viewed in the context of the
ultimate imminent finality of death, was final. That the district court framed
its ruling as without prejudice here was no more than an unwillingness to
foreclose correction of any error in its ruling given the reality of the imminent
execution and that appellate review was in fact Hummel’s only remaining
recourse. We do not trifle with the core strictures of this court’s power. Rather
we today apply the rules of finality with an open not a blind eye. We need not
and do not engage the issues of exhaustion and the State Administrative Code


      7  In his brief before this panel, Hummel somewhat clarifies his new requested sum.
Stanulis will need 20–24 fewer hours than originally requested, so he needs a total of
$10,000–11,000, or $6,500–7,500 in excess of the allotted $3,500.
       8 TEX. ADMIN CODE § 143.57 (Commutation of Death Sentence to Lesser Penalty); id.

§ 143.43 (Procedure in Capital Reprieve Cases).
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                                 No. 20-70002
as we find Hummel’s assertions of error in the district court’s award of funding
wholly without merit.
                                      IV.
      The district court engaged with Hummel three times: in a show-cause
order issued shortly after Hummel filed his motion, in the order denying the
motion, and in the order denying the motion for reconsideration. All three
reasoned writings noted various deficiencies and unanswered questions in
Hummel’s requests. Ultimately, the district court granted funding equal to the
statutory cap but declined to exceed it.
      The district court reasoned that, at trial, Hummel used two experts as
part of his mitigation case. One opined that Hummel would receive a relatively
lax prison security level. The second, a forensic psychologist, did a full
neuropsychological, personality, and emotional evaluation that used the gamut
of available documents and interviews. This expert, Dr. McGarrahan, opined
that Hummel’s crimes came “in a flood of emotional rage” caused by a lifetime
of repressed emotions, even though Hummel knew the decision to kill was
wrong. She concluded that Hummel had no severe mental disorder but may
suffer from several personality disorders. Thus, the district court concluded
that Hummel’s military record was on full display at trial, as were expert
opinions assessing the effect of that service—and of Hummel’s other
experiences and tendencies—on Hummel’s behavior.
      Hummel argues McGarrahan’s trial testimony “was based entirely on a
clinical assessment and did not utilize risk-assessment tools.” A risk
assessment is especially valuable, he argues, because of Hummel’s “exemplary”
behavior since his 2009 arrest and his lack of violent history before the crime.
It may be that Brown and Stanulis, both of whom are familiar with veterans
and capital cases, make a “unique team” with interlacing strengths—Brown is
alleged to be the only known MTI expert but cannot make diagnoses, for
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                                      No. 20-70002
example, while Stanulis can. But a showing that two experts complement one
another is not a showing that their services are reasonably necessary. Given
the broad deference afforded the district court, especially given the effect of the
statutory cap and the additional steps required of a district judge who wishes
to exceed it, we find no abuse of discretion.
                                             V.
      Finally, on March 13, Hummel filed an “Emergency Supplement to the
Motion for a Stay of Execution.” He contends his execution should be stayed
because of COVID-19’s effect on the courts and his execution. Hummel
acknowledges that this motion violates the rule that all such stay requests
must be filed at least seven days before the scheduled execution date. 9 In this
case the extent of COVID-19’s effect on commerce and daily life was not as
clear on March 11, seven days before Hummel’s execution date. This situation
has evolved rapidly. But we need not address the effect of the rule on this case,
as Hummel identifies no roadblock to his execution warranting a stay from this
Court.
      Hummel speculates that an expected visitor may be unable to visit him,
that disruption to various tribunals (like this Court or the Governor’s office
and the Board of Pardons and Paroles) may deprive him of adequate review,
and that absences among the State’s execution staff may cause problems.
These ills are speculative, and we will not stay the execution based on what
might happen. For our part, the virus has not prevented our review of
Hummel’s appeal. We note also that this stay request is freestanding—it is not
tied to any appeal that we would ultimately need to resolve. Construing
Hummel’s supplement as an additional motion for a stay of execution, that
motion is denied.


      9   See TEX. CT. CRIM. APP. MISC. R. 11–003.
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                                     VI.
      The judgment of the district court is affirmed and the petitions for stay
of execution are denied.




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