One year after winning a rare unanimous victory in the U.S. Supreme Court, death row prisoner Carlos Ayestas was again denied access to critical investigative funding by the U.S. Court of Appeals for the Fifth Circuit. Mr. Ayestas, who is now represented by a team that includes pro bono attorneys from O’Melveny & Myers, was represented by counsel at trial who failed to investigate crucial facts about his background and mental health status. As a result, the jury was unable to consider this important information in choosing to sentence him to death. However, these facts were also omitted from his state habeas petition, rendering the issue of trial-counsel-ineffectiveness waived unless he could show that state habeas counsel was also ineffective. To prevail on this claim in federal habeas proceedings, Mr. Ayestas had to show what state habeas counsel should have investigated and shown concerning his mental health and drug use. Federal habeas counsel requested funds to conduct this investigation under 18 U.S.C. § 3599(f), which instructs courts to grant “reasonably necessary” funding for federal habeas corpus petitions. The Fifth Circuit instead analyzed Mr. Ayestas’s request under a “substantial need” standard, which the U.S. Supreme Court unanimously struck down in 2018 in Ayestas v. Davis as plainly more demanding than what the statute requires. In 2017, the ABA submitted an amicus brief in support of Mr. Ayestas’s petition for certiorari.
On July 31, 2019, on remand from the Supreme Court, Judge Leslie Southwick, writing for the Fifth Circuit panel, once more affirmed the federal district court’s initial denial of funding. Judge Southwick concluded that, even applying the correct standard, Mr. Ayestas could not demonstrate a reasonable need for the funds because his claim of state habeas counsel ineffectiveness was bound to fail.
This holding rested on a finding that, given the court’s understanding of prevailing professional norms in 1998 when the state habeas petition was filed, state habeas counsel was not deficient for omitting mental illness and substance abuse mitigation evidence from the petition. The Fifth Circuit denied that “scrutiny of mitigation investigations” was the norm at that time, noting that the 1989 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases “only spoke briefly to the duties for post-conviction counsel.” According to the court, prior to Supreme Court decisions about effective mitigation investigation beginning with Williams v. Taylor in 2000, there was scant knowledge of or support for the need for state habeas counsel to conduct thorough, comprehensive investigations in capital cases.
In particular, the Fifth Circuit concluded, there was “little to indicate to state-habeas counsel that [trial counsel’s] failure to develop substance abuse and mental illness evidence was an egregious omission.” The court’s opinion contained no references to the current edition of the ABA Guidelines, which discusses in detail the need to conduct a thorough mitigation investigation at every stage of a capital case. Those Guidelines are based on norms of capital representation that had become well-established in the decades prior to their first publication in 2003.
The Fifth Circuit’s reasoning was grounded in Bobby v. Van Hook, a 2009 Supreme Court opinion specifying only that the Sixth Circuit erroneously used the 2003 ABA Guidelines to evaluate counsel’s performance without considering whether they applied in 1985. Some lower courts, however, have adopted a broadly expansive reading of Van Hook, using it to dismiss the Guidelines’ applicability without examining the underlying norms that existed in the year in question. Other courts have continued to use the Guidelines in the manner modeled by the Supreme Court itself in prior cases, looking to them as a guide to longstanding norms of reasonable counsel performance, without placing undue significance on the date of their publication.
If Mr. Ayestas chooses to again turn to the Supreme Court for relief, his petition seeking review of the Fifth Circuit’s decision will be due in the fall of 2019.