Ayestas v. Davis

THE “SUBSTANTIAL NEED” TEST

Ayestas argues that the Fifth Circuit’s substantial need test is incompatible with the text, history and purpose of § 3599(f). Section 3599(f) provides funding for “investigative, expert, or other services” that are “reasonably necessary” to represent criminal defendants. Ayestas claims that, contrary to the statutory language of “reasonably necessary,” the Fifth Circuit’s “substantial need” test denies defendants funding for representation-related services if it determines that their claim is not viable on the merits. Reading this “substantial need” requirement into § 3599(f), Ayestas contends, imposes a significant additional burden on capital defendants seeking funding under § 3599(f): it effectively requires them to demonstrate the merit and viability of their claims before receiving the funding needed to investigate those very claims. Ayestas also argues that the substantial need test contravenes Congress’ intent to create a statutory scheme that would improve the quality of representation available to capital defendants. Ayestas points to § 3599(f)’s legislative history to support this argument, noting that it grew out of the Criminal Justice Act. Ayestas argues that courts consistently interpreted the Criminal Justice Act’s funding provisions according to a reasonable necessity standard, which Congress then incorporated into § 3599(f) in 1988. Ayestas maintains that, unlike the substantial need test, the reasonable necessity standard did not require defendants to establish the viability of their claims in order to obtain financial assistance to investigate those claims. Finally, Ayestas points out the detrimental effects of the substantial need test on capital defendants: it invites courts to speculate on the merits and viability of a claim before the defendant has access to the funding necessary to properly develop it. According to Ayestas, the substantial need test puts § 3599(f) movants between a rock and hard place, forcing them to show the court that there is relevant evidence they could discover without having the resources to do so.

Ayestas argues that he, specifically, is entitled to funding for services under § 3599(f) because they are reasonably necessary to his representation. Ayestas contends that any reasonable lawyer would have investigated his history of mental illness and substance abuse to produce potentially mitigating evidence at trial. To that end, Ayestas points out that his narrow § 3599(f) motion requested only those services necessary to make these determinations. Further, Ayestas explains that his state habeas counsel ignored the advice of a mitigation specialist who recommended a thorough investigation into his personal background.

Respondent Lorie Davis (“Davis”), the Director of the Correctional Institutions Division of the Texas Department of Criminal Justice, counters that the substantial need test properly accounts for the limitations that the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) places on § 3599(f) funding in the context of federal habeas proceedings. Davis asserts that § 2254(e)(2) of AEDPA bars the defendant from introducing evidence in a federal habeas proceeding that was not already included in the state court record. Davis therefore concludes that § 3599(f) funding is never available to investigate such evidence. Davis further notes that when Congress passed AEDPA in 1996, it amended the statutory language in § 3599(f)’s precursor to give greater discretion to judges over funding decisions. Instead of ordering that judges “shall authorize” funding, Davis points out that Congress stated that judges “may authorize” it. Davis also asserts that circuit courts routinely deny funding to capital defendants based on a preliminary assessment of the merits of their claim, which, she observes, avoids channeling funds to frivolous investigations. In contrast, Davis argues that Ayestas’s proposed standard for § 3599(f) provides no limit on which habeas petitioners may obtain funding.

Thus, Davis suggests that Ayestas’s approach transforms the statutory scheme into an entitlement program for capital defendants to pursue evidence that may not exist.

Davis disputes the relevance of the evidence that Ayestas seeks to uncover. Davis observes that Ayestas’s post-trial diagnosis of schizophrenia does not demonstrate that his trial counsel should have known to investigate the possibility of mental illness during the trial process. Further, Davis asserts that Ayestas has not shown that such evidence would have changed the outcome of the trial. Davis argues that the evidence of substance abuse and mental illness that Ayestas claims an investigation will unearth might have a prejudicial rather than mitigating effect. In effect, Davis contends that Ayestas has not shown a substantial likelihood that the jury would have given him a life sentence rather than the death penalty had they been aware of his substance abuse issues and mental illness, especially given the violence of his crime.

ARTICLE III JURISDICTION

Davis contends that the Supreme Court cannot review the Fifth Circuit’s denial of § 3599(f) funding to Ayestas because the denial is an administrative act which does not fall within the Court’s Article III jurisdiction. Davis notes that a judicial decision constitutes an administrative act when it is non-adversarial and subject to review outside of normal Article III procedures. Here, Davis asserts that the decision to deny funding is non-adversarial because the § 3599(f) motion was made ex parte, involving only Ayestas and the judge. Similarly, Davis observes that § 3599(f) decisions at the district court level are not subject to normal Article III review because a single circuit court judge can override them. Davis characterizes § 3599(f) as a government benefit program for criminal attorneys representing indigent defendants that the judiciary merely happens to administer. From this perspective, Davis argues that any decisions a judge might make about denying or granting funding under § 3599(f) are not reviewable exercises of Article III judicial power.

Ayestas contends that it is within the Supreme Court’s jurisdiction to review § 3599(f) determinations because circuit courts routinely review such determinations and other determinations made under the broader § 3599 provisions . Ayestas points out that the Supreme Court probably would not have accepted this case on the § 3599(f) question presented only to dismiss it for lack of Article III jurisdiction. Moreover, Ayestas argues that § 3599(f) decisions are not purely administrative in nature—and thus fall under the Court’s Article III jurisdiction—because the Fifth Circuit’s § 3599(f) order was an integral part of the final decision in his case, which is inherently an adversary proceeding. Ayestas notes that the State’s decision to contest the allocation of § 3599(f) funding makes the decision an adversarial one, as the State’s objections often extend to the underlying facts that support a request for relief. Thus, Ayestas contends that § 3599(f) asks the Court to apply a statutory standard to the same facts that support the defendant’s legal claim and that this is a quintessential exercise of Article III judicial power.