December 01, 2019

Carlos Ayestas Again Seeks Supreme Court Intervention Following New Fifth Circuit Denial

The legal team representing Texas death row prisoner Carlos Ayestas, including pro bono attorneys from O’Melveny & Myers, filed a certiorari petition with the U.S. Supreme Court on October 29, 2019, asking the Court to intervene in his case a second time. In 2018, the Court unanimously held that the U.S. Court of Appeals for the Fifth Circuit had been using an overly demanding interpretation of a federal statute to deny investigation and expert funding to indigent death row prisoners. Though the governing law, 18 U.S.C. § 3599(f), instructs courts to grant “reasonably necessary” funding for the services needed to support federal habeas corpus petitions, the Fifth Circuit instead analyzed Mr. Ayestas’s request for funds under its own, more demanding “substantial need” standard and subsequently denied funding. This prevented Mr. Ayestas’s team from doing the needed legwork to uncover the facts underlying his claim that his trial and post-conviction counsel had not sufficiently investigated his life history and mental health.

 John Minor Wisdom U.S. Courthouse, home of the United States Court of Appeals for the Fifth Circuit

John Minor Wisdom U.S. Courthouse, home of the United States Court of Appeals for the Fifth Circuit

Bobak Ha'Eri [CC BY 3.0 (]

Back in the Fifth Circuit after the Supreme Court remanded for re-analysis of Mr. Ayestas’s claim, Mr. Ayestas was handed another loss. The Fifth Circuit held earlier this year that even under the correct standard, there was no reasonable need for the funds because the claim of state habeas counsel ineffectiveness would fail regardless. The appellate court reasoned that state habeas counsel’s failure to adequately investigate Mr. Ayestas’s background was not deficient performance. The court denied that professional norms or Supreme Court precedent made clear post-conviction counsel’s mitigation investigation duties in 1998, the time of state habeas counsel’s representation. In reaching this conclusion, the Fifth Circuit referenced only the 1989 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, rather than the current edition. Published only a few years after Mr. Ayestas’s state habeas proceedings, the current Guidelines edition discusses in detail the need to conduct a thorough mitigation investigation at every stage of a capital case and restates norms of capital representation that were well-established prior to Mr. Ayestas’s 1997 trial. The Fifth Circuit also referenced 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. Though Van Hook did not depart from the Supreme Court’s body of ineffectiveness-of-counsel jurisprudence, some lower courts have misapplied it to dismiss the Guidelines’ applicability without examining the underlying norms that existed in the year in question, as the Fifth Circuit did here.

Mr. Ayestas’s new certiorari petition pointed out the differing approaches of the various appellate courts in applying professional norms to resolving ineffectiveness claims. Unlike in the Fifth Circuit, decisions in the Third, Sixth and Ninth Circuits have “recognized that prevailing professional norms in the 1980s and 1990s required counsel to conduct a mitigation investigation examining a capital defendant’s background, including his mental health and social history.” The filing also cited to Supreme Court cases predating Mr. Ayestas’s state habeas petition, in which the Court emphasized the importance of mitigation investigation to capital defense, particularly in the realm of mental health investigations.

With an extension granted, the State’s response is due on January 13th, 2020.

The Project’s previous coverage of this case further detailing the Fifth Circuit’s remand opinion is available here.