Opinion analysis: Justices unanimously reverse 5th Circuit on funding for capital habeas petitions

If the Supreme Court unanimously sides with a death-row inmate in a federal habeas case, chances are that the lower-court decision was clearly wrong, and the justices’ own disposition is remarkably narrow. So it was for the court’s ruling today in Ayestas v. Davis, a case about the standard that an indigent prisoner must meet in order to receive funding in support of a habeas petition for “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” In a unanimous opinion by Justice Samuel Alito, the court held that the federal funding statute (18 U.S.C. § 3599(f)) means what it says — and that the U.S. Court of Appeals for the 5th Circuit erred in interpreting the “reasonably necessary” language to effectively require a prisoner to prove the likelihood of success on the merits in his habeas case before receiving such funding. Instead, “[i]n those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.”

As we explained in the argument preview, the petitioner, Carlos Manuel Ayestas, was convicted and sentenced to death by a Texas state court in 1997 for his role in the 1995 murder of 67-year-old Santiaga Paneque during an apparent robbery. He claims that he received ineffective assistance of trial counsel, who failed to present mitigation evidence at sentencing that might have led the jury to opt for a lesser sentence than death, and ineffective assistance of his state post-conviction counsel, who did not argue that Ayestas’ trial counsel had been ineffective. Although the doctrine of “procedural default” would usually preclude a petitioner from raising a claim that could have been, but was not, presented to the state courts, the Supreme Court held in Trevino v. Thaler that a “nested” ineffective assistance claim like Ayestas’ can provide “cause” to excuse such a default — if, in fact, both sets of lawyers were ineffective.

In a case like this one,  that means demonstrating to the federal habeas court what a proper mitigation investigation would have uncovered, which can only be done with adequate funding. But the 5th Circuit had interpreted the funding statute to require the prisoner to present “a viable constitutional claim that is not procedurally barred.” For claims like Ayestas’, that would condition the availability of investigative funds on the prisoner’s ability to prove the very thing that the investigation seeks to determine. So, after resolving the Supreme Court’s jurisdiction to hear Ayestas’ funding appeal (which, rejecting the state’s argument, Alito deemed a quintessentially “judicial” dispute), the opinion turned to why the 5th Circuit’s approach “is too restrictive,” especially in light of Trevino. As Alito explained, “it is possible that investigation might enable a petitioner to carry [the] burden” of proving the ineffectiveness of his trial and/or state post-conviction counsel.

To be sure, Alito stressed, “the ‘reasonably necessary’ test requires an assessment of the likely utility of the services requested.” But “a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks.” Time will tell just how significant a difference there is between Alito’s formulation of the test and the 5th Circuit’s own approach, but Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote separately (and at length) to explain why, under the majority’s reasoning, “Ayestas has made a strong showing that he is entitled to § 3599(f) funding.”

The harder question — raised for the first time in the Supreme Court by the state of Texas — is whether this was all much ado about nothing because of a different federal statute, 28 U.S.C. § 2254(e)(2), which Texas claims acts as a barrier to any “procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record.” If Texas is right, then, presumably, no amount of funding would be “reasonably necessary” in a case like this one, because the sought-after relief would be barred.

In kicking that question back to the 5th Circuit in the first instance, Alito’s opinion kept all nine justices on board. But the opinion leaves the distinct impression that it will not be long before that much broader issue finds its way back to the Supreme Court.