December 18, 2018

Court Unanimously Rejects Fifth Circuit’s Circular Requirements for Providing Investigative Funds to Defense Teams

On March 21, 2018, in a rare unanimous decision in a capital case, the Supreme Court issued its opinion in Ayestas v. Davis, with Justice Alito writing for the majority. Ayestas concerned a federal district court’s denial of a defense motion for investigative funding under a federal statute, 18 U.S.C. § 3599(f). Counsel for Mr. Ayestas requested the funds to develop evidence that would demonstrate prior counsel’s ineffectiveness at trial. Trial attorneys conducted almost no investigation into Mr. Ayestas’s background and spent only two minutes making the case for why he should not be sentenced to death. During state habeas review, attorneys also failed to conduct a proper mitigation investigation, and in so doing waived viable claims of trial counsel ineffectiveness. Such waived claims are typically barred from further consideration by the courts, but the Supreme Court’s 2012 decision in Martinez v. Ryan created a path to overcoming these procedural bars. In order to take advantage of Martinez, however, Mr. Ayestas would have to show that his state habeas counsel were also ineffective for failing to raise claims of trial counsel’s ineffectiveness. In order to make this showing, Mr. Ayestas would need to introduce the evidence that trial counsel should have developed to present to the jury. Development of such evidence requires the assistance of experts and investigators to conduct a proper mitigation investigation.

Mr. Ayestas’s habeas counsel requested funding for these services, but that request was denied by the Texas district court, using the Fifth Circuit’s circular requirement that defendants show a “substantial need” for the funding by introducing the very evidence that they would use the funding to obtain. The Supreme Court rejected this test, finding that the “substantial need” standard went beyond the language of the statute, which requires only that funding be “reasonably necessary.” Reversing the decision of the lower courts, the Supreme Court remanded Mr. Ayestas’s case for further proceedings. The Court declined to address, however, a claim raised by the state for the first time in its briefing to the Supreme Court, arguing that funding for investigation in federal habeas is never “reasonably necessary” under such circumstances, because the statutes governing federal habeas procedure do not allow federal courts to consider new evidence that was not previously considered by the state courts.