AYESTAS v. DAVIS, No. 16 – 6795

QUESTION PRESENTED: Whether the Fifth Circuit erred in hold­ing that 18 U.S.C. § 3599(f) with­holds rea­son­ably nec­es­sary” resources to inves­ti­gate and devel­op an inef­fec­tive- assis­tance-of-coun­sel claim that state habeas coun­sel for­feit­ed, where the claimant’s exist­ing evi­dence does not meet the ulti­mate bur­den of proof at the time the § 3599(f) motion is made. 

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On October 30, the Supreme Court held oral argu­ment in Ayestas v. Davis. The Petitioner, Carlos Ayestas, was con­vict­ed and sen­tenced to death in Harris County, Texas in 1997. The courts in the Fifth Circuit repeat­ed­ly denied Mr. Ayestas’s requests for fund­ing to inves­ti­gate his back­ground, upbring­ing, and men­tal health his­to­ry, with­out which he was unable to dis­cov­er mit­i­gat­ing evi­dence he said was indis­pens­able to pre­sent­ing a mean­ing­ful case to spare his life. Ayestas’s tri­al coun­sel con­duct­ed vir­tu­al­ly no life-his­to­ry inves­ti­ga­tion and pre­sent­ed a case for life to the jury that last­ed just two min­utes. Both his tri­al and state post-con­vic­tion lawyers over­looked what his fed­er­al habeas lawyers have called pow­er­ful red flags” of men­tal ill­ness — includ­ing head trau­ma and sub­stance abuse — and failed to devel­op a record of the mit­i­gat­ing evi­dence that should have been pre­sent­ed in his case. Then the fed­er­al habeas court refused to pro­vide Mr. Ayestas fund­ing to inves­ti­gate this issue, which his lawyers argued the pre­vent­ed him from show­ing how a prop­er inves­ti­ga­tion would have affect­ed the jury’s sen­tenc­ing verdict.

Under the applic­a­ble fed­er­al statute in this case, a pris­on­er is enti­tled to fund­ing that is rea­son­ably nec­es­sary” to inves­ti­gate and devel­op his claims. The U.S. Court of Appeals for the Fifth Circuit, how­ev­er, has inter­pret­ed rea­son­ably nec­es­sary” as requir­ing a show­ing of sub­stan­tial need.” The Fifth Circuit affirmed the low­er court’s denial of fund­ing in Mr. Ayestas’s case, find­ing that his con­sti­tu­tion­al claim was not wor­thy of fact devel­op­ment because even if Ayestas had entered the ear­ly stages of an as-yet undi­ag­nosed men­tal ill­ness, [it] f[ou]nd it at best to be con­ceiv­able, but not sub­stan­tial­ly like­ly, that the out­come may have been dif­fer­ent.” In oth­er words, with­out the ben­e­fit of evi­dence that could have been pre­sent­ed if he had fund­ing to devel­op his claim, the Fifth Circuit deter­mined that Ayestas had not shown the prej­u­dice it thought was nec­es­sary to pro­vide him fund­ing to devel­op evi­dence sup­port­ing his claim. 

Evidence that was avail­able to his pre­vi­ous attor­neys sug­gests that Mr. Ayestas like­ly suf­fers from a seri­ous men­tal ill­ness, com­pound­ed by mul­ti­ple head trau­mas and sub­stance abuse. He has already received one diag­no­sis of schiz­o­phre­nia from a prison med­ical pro­fes­sion­al. His lawyers argued that to enforce his con­sti­tu­tion­al rights, he needs to be able to con­duct the basic social-his­to­ry inves­ti­ga­tion that informs a reli­able diag­no­sis. They argued there is no way to know the strength of Ayestas’s case in mit­i­ga­tion unless fund­ing is made avail­able to con­duct the thor­ough inves­ti­ga­tion into his back­ground that the con­sti­tu­tion requires in cap­i­tal cases.

Federal law requires that cap­i­tal defen­dants like Mr. Ayestas be pro­vid­ed those ser­vices that are rea­son­ably nec­es­sary to their rep­re­sen­ta­tion, includ­ing experts and inves­ti­ga­tors. Almost any­where else in the coun­try, a fed­er­al court would have rou­tine­ly grant­ed Ayestas’s request for such basic fund­ing. And if he had the mon­ey or were in a juris­dic­tion with a pub­lic defend­er, con­duct­ing the inves­ti­ga­tion for which he request­ed fund­ing would have been con­sid­ered one of the most imme­di­ate and crit­i­cal pri­or­i­ties of the rep­re­sen­ta­tion. The Supreme Court will decide whether the Fifth Circuit’s out­lier prac­tice vio­lates the scheme that Congress designed to ensure that poor peo­ple have access to ade­quate legal rep­re­sen­ta­tion, and whether fed­er­al courts may require Ayestas and oth­er indi­gent appli­cants to show what their inves­ti­ga­tions will uncov­er before those inves­ti­ga­tions are even conducted.

The State’s aggres­sive respons­es in this lit­i­ga­tion also trans­formed the case into some­thing else — an attempt to nul­li­fy Martinez v. Ryan, one of the most impor­tant recent Supreme Court habeas deci­sions. Texas argued that Ayestas was not enti­tled to fund­ing because fed­er­al review of his case was lim­it­ed to the record already devel­oped in his case. As a gen­er­al rule, fed­er­al habeas cor­pus peti­tion­ers are required to present evi­dence and argu­ment to the state courts before they can raise those mat­ters in fed­er­al court. If they fail to raise the issue in state court, they are barred from seek­ing fed­er­al review of that issue. However, Martinez cre­at­ed an excep­tion to that rule when a habeas peti­tion­er’s fail­ure to raise the issue of his tri­al coun­sel’s inef­fec­tive­ness in state court was itself a prod­uct of inef­fec­tive rep­re­sen­ta­tion. The Martinez rule rec­og­nized the sur­pass­ing impor­tance of effec­tive rep­re­sen­ta­tion at tri­al, and was an attempt to ensure that a fed­er­al forum is avail­able to pro­tect that fun­da­men­tal right when a state fails to do so. If a habeas peti­tion­er is lim­it­ed to the record devel­oped by inef­fec­tive post-con­vic­tion lawyer, Ayestas argued, he could nev­er present the fed­er­al courts with the evi­dence his state post-con­vic­tion coun­sel had, as a result of inef­fec­tive­ness, failed to inves­ti­gate and present. Texas’s argu­ment, Ayestas said, would sig­nif­i­cant­ly impair the abil­i­ty of indi­gent pris­on­ers to enforce their Sixth Amendment right to counsel.