No. 14-276

In the Supreme Court of the United States _____________

CHRISTOPHER CHUBASCO WILKINS, PETITIONER

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION, RESPONDENT _____________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________

BRIEF FOR RESPONDENT IN OPPOSITION

_____________

KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant

Attorney General

SCOTT A. KELLER Solicitor General RICHARD B. FARRER Assistant Solicitor General

Counsel of Record OFFICE OF THE

ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 richard.farrer@

texasattorneygeneral.gov [Tel.] (512) 936-1836 [Fax] (512) 474-2697

(i)

CAPITAL CASE

QUESTIONS PRESENTED

Indigent federal habeas petitioner Christopher

Wilkins seeks to excuse under Martinez v. Ryan his

procedural default of eight ineffective-assistance-of-

trial-counsel (IATC) claims. He also maintains that

he should receive almost $92,000 to investigate and

develop his defaulted claims (1) before he attempts to

make the showing required to excuse his default un-

der Martinez and (2) regardless of §2254(e)’s re-

striction on the introduction of new evidence in fed-

eral court. His petition presents the following ques-

tions:

1. Whether the Fifth Circuit erred in affirming

the denial of Wilkins’s request for funding un-

der 18 U.S.C. §3599(f) to investigate and de-

velop procedurally defaulted IATC claims

notwithstanding his failure to demonstrate

reasonable necessity or the need for services of

an unusual character or duration.

2. Whether the Fifth Circuit’s denial of habeas

relief and a certificate of appealability for Wil-

kins’s procedurally defaulted claims involved a

premature merits determination.

(ii)

TABLE OF CONTENTS

Questions presented ................................................ i

Table of authorities ............................................... iv

Reasons for denying the petition ........................... 1

Statement ............................................................... 3

Argument ................................................................ 8

I. Relief under Martinez is unavailabe

for reasons not addressed by the

petition ......................................................... 8

A. Wilkins has failed to show, and

cannot show, ineffective state

habeas counsel ........................................ 9

B. There is ample record evidence

supporting the district court’s

finding that state habeas counsel

was effective ........................................... 9

II. The petition is founded on a

misapprehension of §3599 and

incorrect characterizations of the Fifth

Circuit’s decision ........................................ 13

A. The petition relies on an overstated

§3599 funding right .............................. 14

B. The court of appeals did not

categorically preclude §3599

funding simply because Wilkins’s

claims are defaulted ............................. 17

(iii)

C. In denying a certificate of

appealability, the Fifth Circuit did

not prematurely judge the merits ........ 18

III. Martinez does not entitle Petitioner to

further relief .............................................. 20

A. Martinez provides a narrow,

limited exception to procedural

default ................................................... 20

B. Martinez does not, and cannot,

create an exception to §3599’s

reasonable-necessity standard............. 21

C. Following Martinez, the Fifth

Circuit does not reject ineffective-

assistance claims without affording

the petitioner an opportunity to

excuse the defaults ............................... 23

D. Martinez does not entitle federal

habeas petitioners to rely on

evidence not presented in state

court ...................................................... 27

Conclusion ............................................................ 33

(iv)

TABLE OF AUTHORITIES

Cases

Balentine v. Stephens,

553 F. App’x. 424 (5th Cir. 2014) (per curiam) ..... 24

Bonin v. Calderon,

59 F.3d 815 (9th Cir. 1995) .................................... 18

Burt v. Titlow,

134 S.Ct. 10 (2013) ................................................. 13

Canales v. Stephens,

765 F.3d 551 (5th Cir. 2014) ............................ 23, 24

Crutsinger v. Stephens,

576 F. App’x 422 (5th Cir. 2014) ..................... 24, 25

Cullen v. Pinholster,

131 S.Ct. 1388 (2011) ....................................... 27, 32

Dansby v. Hobbs,

766 F.3d 809 (8th Cir. 2014) .................................. 26

Dickens v. Ryan,

740 F.3d 1302 (9th Cir. 2014) (en banc) ............... 26

Duckett v. Mullin,

306 F.3d 982 (10th Cir. 2002) ................................ 18

Edwards v. Roper,

688 F.3d 449 (8th Cir. 2012) .................................. 18

Ex parte Wilkins,

No. 75,229-01, 2011 WL 334213

(Tex. Crim. App. Feb. 2, 2011) ................................ 4

Gutierrez v. Quarterman,

201 F. App’x 196 (5th Cir. 2006) (per curiam) ...... 23

Hamilton v. Taylor,

No. 98-15, 1999 WL 3736 (4th Cir. 1999)

(per curiam) ............................................................ 18

Holland v. Jackson,

542 U.S. 649 (2004) (per curiam) .......................... 28

(v)

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992) .................................................... 29

Lawson v. Dixon,

3 F.3d 743 (4th Cir. 1993) ...................................... 18

Martinez v. Ryan,

132 S.Ct. 1309 (2012) ................... 1, 9, 19, 20, 21, 32

McFarland v. Scott,

512 U.S. 849 (1994) .......................................... 14, 16

Miller-El v. Cockrell,

537 U.S. 322 (2003) .............................. 19, 21, 25, 32

Newbury v. Stephens,

756 F.3d 850 (5th Cir. 2014) .................................. 24

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ................................................ 32

Riley v. Dretke,

362 F.3d 302 (5th Cir. 2004) .................................. 23

Rojem v. Gibson,

245 F.3d 1130 (10th Cir. 2001) .............................. 18

Rompilla v. Beard,

545 U.S. 374 (2005) ................................................ 31

Sasser v. Hobbs,

735 F.3d 833 (8th Cir. 2013) ............................ 25, 26

Sawyer v. Whitley,

505 U.S. 333 (1992) ................................................ 31

Sells v. Stephens,

536 F. App’x 483 (5th Cir. 2013) ..................... 24, 25

Slack v. McDaniel,

529 U.S. 473 (2000) ................................................ 19

Smith v. Dretke,

422 F.3d 269 (5th Cir. 2005) .................................. 16

(vi)

Snodgrass v. Angelozzi,

545 F. App’x 698 (9th Cir. 2013) ..................... 26, 27

Square D Co. v. Niagara Frontier Tariff

Bureau, Inc., 476 U.S. 409 (1986) ......................... 32

Strickland v. Washington,

466 U.S. 668 (1984) .................................................. 8

Trevino v. Stephens,

740 F.3d 378 (5th Cir. 2014) (per curiam) ............ 24

Trevino v. Thaler,

133 S.Ct. 1911 (2013) ....................................... 20, 21

Wilkins v. Stephens,

560 F. App’x 299 (5th Cir. 2014)

(per curiam) ...................... 3, 4, 5, 7, 8, 13, 17, 19, 20

Wilkins v. Thaler,

No. 4:12-CV-270-A, 2013 WL 335998

(N.D. Tex. Jan. 29, 2013) (mem. op.)............... 6, 7, 9

(Michael) Williams v. Taylor,

529 U.S. 420 (2000) .......................... 2, 27, 29, 30, 32

Woods v. Sinclair,

764 F.3d 1109 (9th Cir. 2014) ................................ 27

Statutes

18 U.S.C. §3599(a)(2) .......................................... 14, 15

18 U.S.C. §3599(f) ................................................ 15, 17

18 U.S.C. §3599(g)(2)........................................... 17, 24

21 U.S.C. §848(q)(9) .................................................. 16

28 U.S.C. §2253(c)(2) ................................................. 19

28 U.S.C. §2254(e)(2) ....................................... 2, 27, 28

28 U.S.C. §2254(e)(2)(A) ............................................ 31

28 U.S.C. §2254(e)(2)(A)(i) ........................................ 30

28 U.S.C. §2254(e)(2)(A)(ii) ....................................... 30

28 U.S.C. §2254(e)(2)(B) ............................................ 31

(vii)

Other Authorities

2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL

HABEAS CORPUS PRACTICE & PROCEDURE §28.3e,

at 1459-60 (5th ed. 2005) ....................................... 31

AEDPA, Pub. L. No. 104-132, §108,

110 Stat. 1226 (1996) ............................................. 16

Br. in Opp. at 11-16, Crutsinger v. Stephens,

No. 14-6992 (Jan. 16, 2014) ................................... 25

(1)

In the Supreme Court of the United States _____________

No. 14-276

CHRISTOPHER CHUBASCO WILKINS, PETITIONER

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION, RESPONDENT _____________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________

BRIEF FOR RESPONDENT IN OPPOSITION

_____________

REASONS FOR DENYING THE PETITION

Petitioner Wilkins attempted to raise eight unex-

hausted and, hence, procedurally defaulted IATC

claims in his federal habeas petition. Martinez v.

Ryan, 132 S.Ct. 1309 (2012), creates a narrow equi-

table exception to the judge-made procedural-default

rule, which typically precludes federal courts from

entertaining defaulted habeas claims. To excuse a

default under Martinez, a petitioner must show that

state habeas counsel was ineffective under Strick-

land and that a defaulted IATC claim is “substan-

tial.” If these showings are made, the procedural de-

fault will not bar federal review of the defaulted

claim on the merits.

2

Wilkins’s petition focuses on the substantiality

prong of Martinez—specifically, Wilkins’s assertion

of a right to funding and evidentiary development

before he is required to prove that his defaulted

claims are substantial. The petition ignores that

Wilkins has not shown, and cannot show, ineffective

assistance of state habeas counsel, which here inde-

pendently precludes relief under Martinez.

Wilkins failed to show reasonable necessity for

funding, which the statute requires. Martinez’s equi-

table judge-made exception to procedural default,

however, did not, and cannot, provide an exception to

§3599’s standard. Nor could Martinez except re-

quests for funding in excess of $7,500 from showing,

as the statute further requires, that funding is need-

ed to pay for services of an unusual character or du-

ration.

Further, 28 U.S.C. §2254(e)(2) dramatically pro-

scribes the introduction of new evidence in §2254

federal habeas proceedings, subject only to certain

exceptions. (Michael) Williams v. Taylor, 529 U.S.

420, 432-434 (2000), held that ineffective assistance

of state habeas counsel is not among the exceptions.

For Wilkins’s funding request to have any practical

effect, Martinez would have to somehow excuse the

restrictions of §2254(e)(2). It does not and cannot do

so.

For these reasons, and those discussed in detail

below, the petition should be denied.

3

STATEMENT

A. Wilkins Confesses To Murdering Willie Free-

man And Mike Silva Because They Played A

Prank On Him.

The events leading up to the murders of Willie

Freeman and Mike Silva began in 2005. Wilkins, on

the run1 in a stolen truck, made it to Fort Worth,

Texas where he “happened upon Freeman, who of-

fered to sell him some drugs.” Wilkins v. Stephens,

560 F. App’x 299, 301 (5th Cir. 2014) (per curiam).

As a prank, Freeman and Silva took $20 from

Wilkins and gave him a piece of gravel, instead of a

rock of cocaine. Freeman later apologized for the

prank and gave Wilkins drugs to make amends. Alt-

hough Wilkins acted as though he was satisfied with

Freeman’s conciliatory gestures, he had in reality re-

solved to kill Freeman and Silva because they had

taken his money and laughed at him. Ibid.

Weeks later, Wilkins convinced Silva to drive the

three men to west Fort Worth, ostensibly to retrieve

a stash of contraband. Ibid. Freeman rode in the

front passenger seat next to Silva. From the back

seat, Wilkins directed Silva to drive to a deserted

stretch of road. Once at the deserted locale, Wilkins

1 Wilkins, it turned out, had a propensity for escaping from cus-

tody. For example, he broke both ankles after falling from an

outer prison wall and, at one point, swallowed a handcuff key.

Wilkins v. Stephens, 560 F. App’x 299, 314 (5th Cir. 2014) (per

curiam).

4

abruptly shot Freeman in the back of the head. Ibid.

Silva immediately stopped the vehicle and attempted

to escape. But he became entangled in his seatbelt,

and Wilkins shot him three times, “once in the neck

and twice in the head.” Ibid. (internal quotation

marks omitted). Wilkins then climbed into the front

seat and began driving, with Silva’s body still caught

in the seatbelt and hanging outside the vehicle. Wil-

kins eventually cut the seatbelt and dumped his vic-

tims’ bodies in a roadside ditch. Id. at 302. One

week and two high-speed chases later, police appre-

hended Wilkins. Ibid.

A jury found Wilkins guilty of the two murders,

and he received a capital sentence. With his direct

appeal pending, Wilkins raised eighteen claims in

state habeas proceedings. Ex parte Wilkins, No.

75,229-01, 2011 WL 334213 (Tex. Crim. App. Feb. 2,

2011); SHCR2 at 2-98. The Texas Court of Criminal

Appeals denied habeas relief.

B. Wilkins Seeks Federal Habeas Relief And Fund-

ing To Develop Defaulted Claims Of Trial-

Counsel Ineffectiveness.

Represented by new counsel in federal court, Wil-

kins filed an ex parte sealed motion seeking nearly

$92,000 in funding for a “fact investigator, a mitiga-

tion specialist, a neuropsychologist, and a prison ex-

pert to help develop his claims for relief.” Wilkins v.

2 “SHCR” refers to the state habeas Clerk’s Record, which

includes the documents filed in state habeas proceedings.

5

Stephens, 560 F. App’x at 302; ECF Nos. 10, 34.3

With that request pending, he filed his federal habe-

as petition on May 22, 2012. ECF Nos. 30, 31. The

petition raises twenty-one claims, including eight

IATC claims that were not exhausted in state court.

Those eight claims are: (1) that trial counsel failed to

conduct an adequate pretrial mitigation investiga-

tion; (2) that Wilkins was denied his right to uncon-

flicted counsel; (3) that he was denied counsel at a

critical stage of the proceeding; (4) that counsel was

ineffective for proceeding to trial even though Wil-

kins desired to plead guilty; (5) that counsel was in-

effective for failing to raise the issue of Wilkins’s

competency to stand trial; (6) that counsel failed to

conduct a reasonable pretrial investigation; (7) that

counsel was ineffective for failing to strike certain

members of the jury venire who were biased; and

(8) that counsel was ineffective for failing to object to

excessive and prejudicial security measures imposed

by the court during the sentencing phase of trial. On

May 25, 2012, the district court denied Wilkins’s re-

quest to proceed ex parte but allowed the funding re-

quest to be filed.

On June 19, 2012, the court denied Wilkins’s

funding request. It found, pursuant to 18 U.S.C.

§3599, that Wilkins failed to demonstrate the re-

quested funds were “reasonably necessary” to the

3 “ECF No.[ ]” refers to the record in the federal district court,

with the designation “No.” followed by a number referring to

the docket number of the cited document.

6

presentation of his claims in federal habeas. ECF No.

42.

On January 29, 2013, the court denied habeas re-

lief. As pertinent here, the court held that Wilkins’s

unexhausted IATC claims were procedurally default-

ed, and that Wilkins could not show cause and prej-

udice to excuse the defaults. Although the court not-

ed circuit precedent at the time holding that Mar-

tinez did not apply to Wilkins’s Texas conviction, the

court also (correctly) recognized that “the Supreme

Court [might] disagree with the Fifth Circuit on ap-

plicability of the Martinez principle to Texas.” Wil-

kins v. Thaler, No. 4:12-CV-270-A, 2013 WL 335998,

at *10 (N.D. Tex. Jan. 29, 2013) (mem. op.). Accord-

ingly, the court addressed, in the alternative, the

“contention of petitioner that his state habeas coun-

sel was inadequate” as well as the substantiality of

the eight defaulted IATC claims. Ibid.

The district court found that Martinez could not

excuse the procedural default of Wilkins’s claims for

two independent reasons. First, the court found no

merit to Wilkins’s allegations of ineffective state ha-

beas counsel:

“Petitioner’s conclusory, argumentative, and

factually unsupported attacks on the profes-

sional reputation and performance of petition-

er’s state habeas counsel do not begin to satis-

fy the Martinez standard; moreover, the state

habeas record affirmatively demonstrates that

[state habeas counsel] provided petitioner

7

proper, indeed vigorous, state habeas repre-

sentation. Thus, even if petitioner had the

benefit of Martinez, he could not establish

cause that would excuse his unexhausted

claims from being procedurally defaulted.”

Ibid. Second, the court held that the eight IATC

claims were not sufficiently substantial to qualify for

Martinez’s exception. Id. at 10-16; id. at 10 (“Even if

the court were to further assume, arguendo, the cor-

rectness of petitioner’s contentions as to the quality

of his state habeas representation, he still would not

be entitled to be excused of his procedural bar be-

cause the unexhausted claims of ineffective trial

counsel are meritless.”). Having concluded that the

claims were insubstantial, which is to say they

lacked even some merit, the court also rejected them,

in the alternative, on the merits. Id. at 10.

C. The Court Of Appeals Denies A Certificate Of

Appealability And Affirms The Denial Of Inves-

tigative Funding.

Wilkins subsequently sought a certificate of ap-

pealability (COA) from the court of appeals. The

court noted that the district court’s rejection of Wil-

kins’s claims on procedural grounds was, “at the very

least, debatable” to the extent it denied Wilkins the

benefit of Martinez based on then-prevailing but

since-overruled circuit precedent. Wilkins v. Ste-

phens, 560 F. App’x at 305. The court nonetheless

held that Martinez could not excuse Wilkins’s de-

faults because none of the defaulted IATC claims

8

was substantial, as required under Martinez. Id. at

306, 314. The court also held that reasonable jurists

would not disagree concerning Wilkins’s failure to

state a viable claim for IATC under Strickland v.

Washington, 466 U.S. 668 (1984). Id. at 314-15.

The court did not address the district court’s find-

ing that Wilkins’s state habeas counsel was not inef-

fective.

The court of appeals also reviewed for an abuse of

discretion the district court’s denial of Wilkins’s mo-

tion for investigative funding under §3599. Id. at

315. The district court did not abuse its discretion,

the appellate court held, because the “sought after

assistance would only support a meritless claim . . .

[or] would only supplement prior evidence.” Ibid.

Since Wilkins “offered little to no evidence that the

investigative avenues” that he wanted funding to

pursue held “any significant chance for success,” he

failed to demonstrate that he had “‘a substantial

need’ for the requested assistance.” Ibid.

ARGUMENT

I. RELIEF UNDER MARTINEZ IS UNAVAILABLE FOR

REASONS NOT ADDRESSED BY THE PETITION.

Petitioner seeks funding to investigate, develop,

and present defaulted IATC claims. His requested

relief, therefore, relies on successfully excusing the

defaults via Martinez. Relief under Martinez, how-

ever, is unavailable to Wilkins for reasons independ-

ent from those addressed by the petition. According-

9

ly, the petition is a poor vehicle for the questions

presented.

A. Wilkins Has Failed To Show, And Cannot Show,

Ineffective State Habeas Counsel.

The petition addresses the substantiality of Wil-

kins’s IATC claims, whether and to what extent he

ought to receive funding to develop them, and when

and to what degree it is appropriate for a court to as-

sess the claims’ merits. Those issues are not square-

ly presented because Wilkins has failed to satisfy a

necessary prerequisite to relief under Martinez.

Martinez can only excuse defaults that result

from ineffective state habeas counsel. See Martinez,

132 S.Ct. at 1320 (“[A] procedural default will not

bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the ini-

tial-review collateral proceeding, . . . counsel in that

proceeding was ineffective.”). As the district court

found, however, Wilkins cannot show that his state

habeas counsel provided ineffective assistance. See

Wilkins v. Thaler, 2013 WL 335998, at *10.

B. There Is Ample Record Evidence Supporting

The District Court’s Finding That State Habeas

Counsel Was Effective.

The record supports the district court’s finding,

which the court of appeals has not yet addressed.

Specifically, the record includes a letter to Wilkins

from his state habeas counsel addressing the “vari-

ous concerns you [Wilkins] have expressed regarding

10

the professional actions undertaken by your [ ]law-

yers” at trial, including concerns regarding the al-

leged inadequate mitigation investigation. ECF No.

31 at 16. In the letter, Wilkins’s counsel explained,

“I have taken those questions seriously and made

substantial efforts to investigate them in order to de-

termine whether they warrant a claim of ineffective

assistance of counsel.” Ibid.

The letter details Wilkins’s concerns regarding:

(1) jury tampering; (2) improper jury instructions;

(3) mental health investigation; (4) aggravating pun-

ishment evidence; (5) failure to investigate history of

abuse; (6) failure to investigate before making stra-

tegic decisions; (7) failure to limit case load;

(8) conflict of interest in connection with a prior rep-

resentation by trial counsel of Gilbert Vallejos;

(9) mitigation specialist; (10) additional experts;

(11) victims’ propensity for violence; (12) the lack of a

motion for continuance; (13) the investigation to dis-

cover holes in the State’s case; (14) the investigation

to discover drug abuse; (15) a failure to interview

witnesses; (16) Brady violations; (17) judicial bias;

(18) failure to charge on murder; and (19) the failure

to retrieve a surveillance camera.

The letter addresses each concern. Regarding the

scope of trial counsel’s efforts on sentencing issues,

state habeas counsel noted that trial counsel “re-

tained a qualified, experienced forensic psychologist

to assist in the investigation and . . . testify.” Id. at

17. That “doctor spent significant time with [Wil-

11

kins], conducting appropriate tests and interviews.”

Ibid. The letter explains that a “strategic decision

was made to forego further testing as it was thought

that such further testing [ ] likely . . . would only

generate additional evidence of . . . future danger-

ousness,” which would support, not undermine, a

capital sentence. Ibid. Regarding further investiga-

tion into drug use, the letter explains that although

such evidence may be “offered in mitigation and giv-

en whatever weight the jury deems appropriate,” in

this case Wilkins “voluntarily testified before the ju-

ry that any drug abuse by [him] was ‘not an excuse’

for [his] behavior.” Id. at 19. In sum, state habeas

counsel explained to Wilkins that “your [trial] law-

yers appear to have thoroughly investigated your

case, developed a reasonable trial strategy and pur-

sued that strategy in light of the evidence adduced

and the applicable law.” Id. at 18.

As to Wilkins’s concerns about the need for more

experts, state habeas counsel explained that “[t]here

does not appear to have been a need to request the

services of the many experts you name” because

“[t]here must be a showing of both need and materi-

ality” to support such a request. Id. at 19. Moreover,

“it may prove . . . extremely poor trial strategy to ob-

tain an expert whose likely opinion will only serve to

further add to the body of incriminating evidence.”

Ibid.

The letter also addresses Wilkins’s questions

about the lack of a continuance after Wilkins’s “law-

12

yers were compelled to replace both [his] mitigation

specialist and investigator prior to [the] trial.” Ibid.

“[T]he replacements,” the letter explains, “were very

well-qualified and, in the opinion of your lawyers,

had ample time to perform their duties.” Ibid. In-

deed, trial counsel were “adamant in their assertions

that had they felt the need to file a motion for con-

tinuance, they would not have hesitated to do so.”

Ibid.

The letter concludes by explaining that it “is not

my practice” to “routinely and cavalierly claim inef-

fective assistance of trial counsel,” id. at 20, because

it is “unethical for lawyers to do so” and “it destroys

whatever credibility your claims may otherwise have

if you claim ineffectiveness when all of the evidence

is to the contrary,” id. at 21. “Do not misunderstand

me,” counsel explained, “I have raised ineffectiveness

when the circumstances warranted it,” “[b]ut I will

not do so in this case” because “[y]ou were represent-

ed by very good lawyers who did everything they

could under very difficult circumstances. Frankly,

you made their job much more difficult by your pre-

trial behavior, your refusal to divulge what you now

claim to be mitigating behavior and even your testi-

mony at the punishment phase.” Ibid.

To overcome state habeas counsel’s reasonable

explanation for his strategic decisions and the pre-

sumption that counsel provided adequate represen-

tation, Wilkins must point to more than the absence

of mitigating evidence and the existence of defaulted

13

claims. See, e.g., Burt v. Titlow, 134 S.Ct. 10, 17

(2013) (“It should go without saying that the absence

of evidence cannot overcome the strong presumption

that counsel’s conduct fell within the wide range of

reasonable professional assistance.”(internal quota-

tion marks and brackets omitted)). He cannot make

this showing.

Wilkins did not overcome the district court’s find-

ing on appeal, which the appellate court declined to

reverse. All the appellate court did in this regard

was note that “even assuming arguendo that state

habeas counsel . . . was deficient,” none of the IATC

claims was substantial. Wilkins v. Stephens, 560 F.

App’x at 314. Assuming an argument for argument’s

sake is not akin to refuting it or its evidentiary basis.

Accordingly, the petition is a poor vehicle for the

questions presented, and the Court should deny cert.

II. THE PETITION IS FOUNDED ON A MISAPPRE-

HENSION OF §3599 AND INCORRECT CHARAC-

TERIZATIONS OF THE FIFTH CIRCUIT’S DECI-

SION.

Wilkins’s arguments for funding and an oppor-

tunity to investigate his defaulted claims rest on

three glaring misconceptions.

First, Wilkins misinterprets §3599, which leads

him to overstate his entitlement to funding. Second,

Wilkins misconstrues the Fifth Circuit’s decision by

accusing the court of denying investigatory funding

simply because Wilkins’s IATC claims are defaulted.

14

Contrary to Wilkins’s accusations, the appellate

court merely affirmed the district court’s exercise of

discretion in denying funds because Wilkins failed to

show any reasonable necessity for them. Third, Wil-

kins again misconstrues the court of appeals’s deci-

sion by faulting the court for prematurely rejecting

his claims on the merits. The court did not do that

either. It instead determined that the claims fail to

meet even a threshold standard of “some merit,”

which is to say they are insubstantial and cannot

provide cause and prejudice to excuse Wilkins’s pro-

cedural defaults or support a COA.

A. The Petition Relies On An Overstated §3599

Funding Right.

Petitioner’s arguments about funding to develop

his defaulted claims are premised on a misunder-

standing of §3599. In short, he asserts a right to

funding that is at odds with §3599’s text.

1. Wilkins’s arguments depart from §3599’s text

by invoking a right under which “indigent capital

habeas petitioner[s] ‘shall be entitled to’ the furnish-

ing of ‘investigative, expert, or other reasonable nec-

essary services.’” Pet. at 20 (quoting 18 U.S.C.

§3599(a)(2)). Indeed, the petition envisions a “right

for capital habeas petitioners to receive federal funds

for ‘reasonably necessary’ investigative and expert

services.” Pet. at 18 (citing McFarland v. Scott, 512

U.S. 849, 854-856 (1994)).

15

The statute’s text, however, reflects that funding

is within the district court’s discretion:

“Upon a finding that investigative, expert, or

other services are reasonably necessary for the

representation of the defendant, . . . the court

may authorize the defendant’s attorneys to ob-

tain such services . . . and, if so authorized,

shall order the payment of fees and expens-

es . . . .”

18 U.S.C. §3599(f) (emphasis added). The petition’s

invocation of a “statutory right . . . to receive federal

funds for ‘reasonably necessary’ investigative and

expert services,” Pet. at 18, and representation that

“indigent capital habeas petitioner[s] ‘shall be enti-

tled to’ the furnishing of ‘investigative, expert, or

other reasonable necessary services,’” id. at 20, are

refuted by the statutory text.4

2. Wilkins is also incorrect to rely on McFarland

as support for his asserted right to funding. The

statute at issue in McFarland, 21 U.S.C. §848, was a

predecessor to §3599. Unlike §3599(f)’s instruction

that the court may authorize funding upon a showing

of reasonable necessity, the statute in McFarland

provided:

4 The petition is likewise mistaken to rely on §3599(a)(2)’s

“shall be entitled to” language because §3599(a)(2)’s entitlement

must be “in accordance with subsections (b) through (f).” 18

U.S.C. §3599(a)(2) (emphasis added). And it is subsection (f)

that grants district courts discretion over funding awards.

16

“Upon a finding . . . that investigative, expert

or other services are reasonably necessary for

the representation of the defendant, . . . the

court shall authorize the defendant’s attorneys

to obtain such services on behalf of the de-

fendant and shall order the payment of fees

and expenses therefore.” (emphasis added).

512 U.S. at 855 (quoting 21 U.S.C. §848(q)(9)). As

the Court explained, that statute “entitle[d] capital

defendants to a variety of expert and investigative

services upon a showing of necessity.” Id.

But Congress later granted district courts discre-

tion to provide funding for expert and investigative

services when it enacted AEDPA, “chang[ing] the

mandatory ‘shall’ language to the discretionary

‘may.’” AEDPA, Pub. L. No. 104-132, §108, 110 Stat.

1226 (1996); Smith v. Dretke, 422 F.3d 269, 289 (5th

Cir. 2005). Section 3599(f) now states that upon a

finding that such ancillary services are reasonably

necessary, the district court may authorize funds.

This change from “shall” to “may” gives district

courts discretion to deny funding even upon a show-

ing of reasonable necessity. By arguing that Wilkins

“‘shall be entitled to’ the furnishing of ‘investigative,

expert, or other reasonable necessary services,’” Pet.

at 20, the petition glosses over the district court’s

discretion to deny funding.

3. Wilkins’s misconception of §3599 also extends

to the amount of funding. Specifically, Wilkins ig-

nores the statutory requirement that funding “shall

17

not exceed $7,500 in any case, unless . . . necessary

to provide fair compensation for services of an unu-

sual character or duration, and the amount of the ex-

cess payment is approved by the chief judge of the

circuit.” 18 U.S.C. §3599(g)(2). Wilkins requested

almost $92,000, yet the petition never engages the

statutory requirement that such funding is reserved

for “for services of an unusual character or duration.”

Id.

B. The Court Of Appeals Did Not Categorically

Preclude §3599 Funding Simply Because Wil-

kins’s Claims Are Defaulted.

Contrary to the petition’s assertions, the Fifth

Circuit did not categorically deny funding simply be-

cause Wilkins’s claims are defaulted. Rather, the

court affirmed the district court’s funding denial, un-

der an abuse-of-discretion standard, because “Wil-

kins offered little to no evidence that the investiga-

tive avenues counsel proposed to take hold any sig-

nificant chance for success.” Wilkins v. Stephens,

560 F. App’x at 315. The court of appeals, thus, ap-

plied the statute, which requires a showing of rea-

sonable necessity for up to $7,500 in funding, and a

showing of the requested services’ “unusual charac-

ter or duration” for funding in greater amounts. 18

U.S.C. §3599(f), (g)(2). This application of the stat-

ute was consistent with other circuits, which hold

that funding may be obtained under §3599 only after

18

showing reasonable necessity, which is akin to show-

ing prejudice from the lack of funding.5

C. In Denying A Certificate Of Appealability, The

Fifth Circuit Did Not Prematurely Judge The

Merits.

The petition also incorrectly suggests that the

Fifth Circuit refused to issue a COA or excuse Wil-

kins’s procedural defaults because he could not make

a full showing on the merits of claims he had not ful-

ly developed. See Pet. 24, 27 (“The Fifth Circuit

5 See, e.g., Edwards v. Roper, 688 F.3d 449, 462 (8th Cir. 2012)

(holding habeas petitioner “bears the burden of establishing”

§3599 funding is “reasonably necessary”); Duckett v. Mullin,

306 F.3d 982, 999 (10th Cir. 2002) (noting that under 21 U.S.C.

§848(q) “indigent defendant . . . bears the burden of demon-

strating with particularity that such services are necessary to

an adequate defense.” (quotation marks omitted)); Rojem v.

Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001) (upholding denial

funds where requests “were speculative, merely suggesting,

without more, that such assistance would have been benefi-

cial”); Bonin v. Calderon, 59 F.3d 815, 837-38 (9th Cir. 1995)

(upholding denial of funding where evidence would have been

“merely redundant” and habeas petitioner “failed to show prej-

udice flowing from the denial of funds”); Lawson v. Dixon, 3

F.3d 743, 753 (4th Cir. 1993) (“Obviously, there was no need to

appoint [the requested psychiatrist] if [the habeas] petition

raised no claims entitling [the petitioner] to a hearing at which

the psychiatrist could present evidence of [the petitioner’s]

competence.”); Hamilton v. Taylor, No. 98-15, 1999 WL 3736, at

*6 (4th Cir. 1999) (per curiam) (upholding denial funding for

experts because inadequate showing of reasonable necessity

where no showing that “habeas petition raises claims entitling

[petitioner] to a hearing at which such experts could testify”).

19

. . . conclude[ed] that Wilkins was not entitled to a

COA and could not show cause under Martinez be-

cause he had failed to establish both prongs of an in-

effective assistance claim under Strickland.” (inter-

nal quotation marks omitted)), id. at 28 (same). That

is not an accurate characterization of the court of ap-

peals’s decision.

For each IATC claim, the court found at a mini-

mum that “Wilkins fails to persuade us that reason-

able jurists would find the district court’s assessment

of his IATC claim . . . debatable or wrong.” Wilkins

v. Stephens, 560 F. App’x at 308; see also id. at 308-

314. In so holding, the Fifth Circuit followed AEDPA

and Supreme Court precedent. A certificate of ap-

pealiabilty may issue “only if the applicant has made

a substantial showing of the denial of a constitution-

al right.” 28 U.S.C. §2253(c)(2). To satisfy §2253(c),

the petitioner must “sho[w] that reasonable jurists

could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different

manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’” Mil-

ler-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Moreover, the court also declined a COA on pro-

cedural grounds because Wilkins could not excuse

his procedural defaults under Martinez. To do so,

Wilkins was required to show his claims are substan-

tial, which is to say they have “some merit.” Mar-

tinez, 132 S.Ct. at 1318. The court of appeals’s deni-

20

al of a COA merely reflects that Wilkins failed to

meet that threshold showing. See Wilkins v. Ste-

phens, 560 F. App’x at 306 (“Concluding that Wilkins

has failed to state any substantial IATC claims, we

deny a COA.”).

III. MARTINEZ DOES NOT ENTITLE PETITIONER TO

FURTHER RELIEF.

Wilkins appears to seek—though he never re-

quests outright—a remand, funding, and the oppor-

tunity to develop his defaulted IATC claims prior to

the application of Martinez’s cause-and-prejudice

standard or §3599’s reasonable-necessity require-

ment. Martinez authorizes no such relief.

A. Martinez Provides a Narrow, Limited Excep-

tion To Procedural Default.

Martinez held that ineffective counsel or “lack of

counsel on [state] collateral review might excuse [a

prisoner’s] state law procedural default.” Trevino v.

Thaler, 133 S.Ct. 1911, 1914 (2013); see Martinez,

132 S.Ct. at 1320 (“It merely allows a federal court to

consider the merits of a claim that otherwise would

have been procedurally defaulted.”). Trevino held

that Martinez applies to Texas judgments of convic-

tion. Trevino, 133 S.Ct. at 1921.

To excuse procedural default under Martinez, a

prisoner must prove that his state habeas counsel

was ineffective under Strickland and “that the un-

derlying ineffective-assistance-of-trial-counsel claim

is a substantial one, which is to say that the prisoner

21

must demonstrate that the claim has some merit.

Cf. Miller–El v. Cockrell, 537 U.S. 322, 123 S.Ct.

1029, 154 L.Ed.2d 931 (2003) (describing standards

for certificates of appealability to issue).” Martinez,

132 S.Ct. at 1318-319. Until that threshold showing

is made, the claim remains defaulted and may not

proceed in federal court. See, e.g., Trevino, 133 S.Ct.

at 1917 (explaining that “a conviction that rests upon

a defendant’s state law procedural default . . . nor-

mally rests upon an independent and adequate state

ground,” in which case “a federal habeas court nor-

mally cannot consider the defendant’s federal consti-

tutional claim”) (internal citation and quotation

marks omitted). Unless the petitioner satisfies Mar-

tinez’s requirements to excuse his procedural default,

the question of funding does not arise.

Martinez doesn’t apply here because Wilkins has

not established ineffective assistance by his state

habeas counsel, and he has not presented a substan-

tial IATC claim. Moreover, Wilkins has already re-

ceived what Martinez offers: an examination of the

merits of his claims. That two federal courts deter-

mined that Wilkins cannot make even a threshold

showing under Martinez’s lenient standard signals

that the claims should proceed no further.

B. Martinez Does Not, And Cannot, Create An Ex-

ception To §3599’s Reasonable-Necessity

Standard.

Martinez says nothing about funding to develop

defaulted claims. The Court’s silence cannot support

22

an affirmative right to funding because any such

right would require an exception to 18 U.S.C. §3599.

Reading Martinez to create an affirmative right to

funding assumes that the Court silently overruled

Congress’s decision to leave funding to the discretion

of the district courts.

Moreover, a right to funding before satisfying

Martinez’s requirements would mandate funding to

investigate every unexhausted IATC claim, no mat-

ter how speculative or frivolous. No request for fund-

ing could ever be denied. If the Court intended that

result in Martinez, it would have said so.

Wilkins’s case demonstrates the folly of mandat-

ing funding before Martinez has been satisfied. For

example, Wilkins raised an IATC claim in connection

with trial counsel’s failure to strike two jurors who

were allegedly incapable of impartiality—one had a

relative who was employed as a prosecutor, while

another was related to a member of the court’s staff.

But Wilkins cannot even allege actual bias. Under

Wilkins’s view of Martinez and §3599, this kind of

claim is automatically entitled to remand, funding in

excess of $7,500, and a concomitant delay in the pro-

ceedings.

Wilkins’s view of Martinez would also reward

prisoners for “defaulting” meritless claims, which is

contrary to AEDPA’s core principle of encouraging

state-court adjudication. For example, Wilkins con-

tends his trial counsel was ineffective for failing to

conduct a reasonable pre-trial investigation. Alt-

23

hough Wilkins cannot even articulate how he was

prejudiced by the alleged inadequate investigation,

his view of Martinez would again mandate remand

and funding for a fishing expedition to investigate

this claim.

C. Following Martinez, The Fifth Circuit Does Not

Reject Ineffective-Assistance Claims Without

Affording The Petitioner An Opportunity To

Excuse The Defaults.

1. Contrary to the petition’s assertions, the Fifth

Circuit respects and gives effect to Martinez and

Trevino. To start, the petition’s reference to Fifth

Circuit decisions that affirm the denial of funding for

defaulted claims prior to Martinez and Trevino are of

no moment. Cf. Pet. at 18-19 (citing Riley v. Dretke,

362 F.3d 302, 307 (5th Cir. 2004) and Gutierrez v.

Quarterman, 201 F. App’x 196, 208-209 (5th Cir.

2006) (per curiam)). Like other circuits, the Fifth

Circuit affirms the denial of funding when the under-

lying claim cannot succeed, which is one way funding

may not be reasonably necessary. See note 5 supra.

The pre-Martinez Fifth Circuit denials of funding for

defaulted claims involve claims unsupported by any

viable excuse for the defaults, meaning the claims

could not succeed in federal habeas and funding was

properly denied.

The Fifth Circuit recognizes in the wake of Mar-

tinez and Trevino that substantial defaulted claims

of IATC may warrant remand. In Canales v. Ste-

phens, 765 F.3d 551, 571 (5th Cir. 2014), for exam-

ple, the court addressed two distinct defaulted claims

24

of IATC. One claim, for guilt-phase ineffectiveness,

lacked even the required “some merit” to excuse the

default. Id. at 568. The second claim, in contrast,

had some merit. Accordingly, the court excused the

default on the second claim and remanded it to dis-

trict court. Id. at 571 (citing Balentine v. Stephens,

553 F. App’x. 424, 425 (5th Cir. 2014) (per curiam)

(unpublished), and Trevino v. Stephens, 740 F.3d 378

(5th Cir. 2014) (per curiam), as further examples in

which remand was appropriate under Martinez and

Trevino).

The petition’s reliance on Newbury v. Stephens,

756 F.3d 850 (5th Cir. 2014), Crutsinger v. Stephens,

576 F. App’x 422 (5th Cir. 2014), and Sells v. Ste-

phens, 536 F. App’x 483 (5th Cir. 2013), cert. denied,

134 S.Ct. 1786 (2014), as reflecting a Fifth Circuit

disregard for Martinez is misplaced. See Pet. at 23-

24, 28-30. In Newbury, the petitioner presented his

IATC claim in state court, where it was rejected on

the merits. 756 F.3d at 862, 867, 869. He then re-

ceived the full $7,500 in §3599 funding for a mitiga-

tion specialist in federal court to adduce further evi-

dence in support of the same claim. Id. at 870-871.

The Fifth Circuit properly affirmed the district

court’s rejection of the petitioner’s request to exceed

$7,500 in funding so he could hire another expert to

opine about the evidence uncovered by the mitigation

specialist. Id. at 871 (noting petitioner “had not

shown that such payment was ‘necessary to provide

fair compensation for services of an unusual charac-

ter or duration’” (quoting 18 U.S.C. §3599(g)(2))).

25

Crutsinger likewise involved an IATC claim that

had been adjudicated on the merits in state court.

See Br. in Opp. at 11-16, Crutsinger v. Stephens, No.

14-6992 (Jan. 16, 2014). Moreover, the court of ap-

peals affirmed the denial of funding because

“Crutsinger has failed to show that his underlying

IAC claim is substantial—that is, that it has ‘some

merit.’” Crutsinger, F. App’x at 430. The court noted

that the substantiality requirement is akin to the

certificate-of-appealability standard. That standard

does not require a full showing on the merits, as

Wilkins’s petition intimates, but instead merely re-

quires the possibility of disagreement among reason-

able jurists on the district court’s resolution of the

claim. See Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

Sells does not support Wilkins, either. The court

rejected Sells’s efforts to use Martinez to excuse his

default because he could not show his state habeas

counsel was ineffective. Sells, 536 F. App’x at 495.

The court found that Sells’s “conclusory assertions”

failed to demonstrate state habeas counsel’s perfor-

mance “fell below acceptable standards” or that Sells

suffered any prejudice as a result of the alleged defi-

cient performance. Id. at 493-495.

2. Contrary to Wilkins’s assertions in his

petition, the Fifth Circuit’s post-Martinez approach

is consistent with the approaches of other circuits.

See Pet. 29-30. In Sasser v. Hobbs, 735 F.3d 833 (8th

Cir. 2013), the Eighth Circuit addressed sixteen

26

IATC claims and determined that “[a]ll but four of

these claims [were] procedurally barred, meritless, or

both.” Id. at 850. The Eighth Circuit then remanded

only the four claims and reversed the district court’s

denial of Sasser’s request for an evidentiary hearing

regarding the claims. Id. at 853-854. In Dansby v.

Hobbs, the Eighth Circuit clarified that Sasser “does

not establish an automatic remand rule; it stands

instead as authority that this court may evaluate

whether claims of ineffective-assistance are

‘substantial’ or ‘potentially meritorious’ in the course

of determining whether a remand is warranted.”

Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014).

Thus, in Dansby, the Eighth Circuit declined to

remand or grant an unnecessary evidentiary hearing

for ineffective-assistance claims that “the district

court properly dismissed . . . notwithstanding

Martinez and Trevino.” Id. at 836.

Similarly, in Dickens v. Ryan, 740 F.3d 1302 (9th

Cir. 2014) (en banc), the district court, prior to

Martinez, had “declined to reach the merits of

[petitioner’s] ‘new’ IAC claim and denied [his]

request for an evidentiary hearing” for the defaulted

claim. Id. at 1318. Since the district court had not

yet considered the claim’s merits at all, the Ninth

Circuit remanded the case. Id. at 1321. In

Snodgrass v. Angelozzi, the Ninth Circuit remanded

ineffective-assistance claims to district court when

the finding of default came before Martinez. 545 F.

App’x 698, 700 (9th Cir. 2013) (unpublished).

Although the Ninth Circuit remanded the case to

27

allow the district court to determine “whether [the

petitioner had] established cause and prejudice

under Martinez,” it declined to decide “whether the

district court need conduct an evidentiary hearing to

determine whether cause and prejudice has been

established.” Id. Likewise, in a later published case,

the Ninth Circuit remanded IATC claims to district

court, but decided to “leave for the district court to

resolve whether an evidentiary hearing should be

held in connection with [petitioner’s] Martinez

claims.” Woods v. Sinclair, 764 F.3d 1109, 1138,

1138 n. 16 (9th Cir. 2014).

D. Martinez Does Not Entitle Federal Habeas Peti-

tioners To Rely On Evidence Not Presented In

State Court.

Even if Martinez could excuse Wilkins’s defaults,

28 U.S.C. §2254(e)(2) would forbid an evidentiary

hearing or the introduction of new evidence not pre-

sented to the state courts.

Where a prisoner “has failed to develop the factu-

al basis of [his] claim[s] in State court proceedings,

the court shall not hold an evidentiary hearing on

the claim,” 28 U.S.C. §2254(e)(2) (emphasis added),

unless he can satisfy a series of “stringent conditions

for excusing the deficiency,” (Michael) Williams v.

Taylor, 529 U.S. 420, 424 (2000); accord Cullen v.

Pinholster, 131 S.Ct. 1388, 1399-1400 & n.4 (2011).

“Those same restrictions [of § 2254(e)(2)] apply a for-

tiori when a prisoner seeks relief based on new evi-

28

dence without an evidentiary hearing.” Holland v.

Jackson, 542 U.S. 649, 653 (2004) (per curiam).

To introduce new evidence in federal habeas the

prisoner must show that:

“(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not

have been previously discovered

through the exercise of due diligence;

and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable factfinder would have found the

applicant guilty of the underlying offense.”

28 U.S.C. §2254(e)(2). Wilkins cannot meet this de-

manding standard.

To the extent Wilkins seeks a federal evidentiary

hearing or to introduce new evidence, he necessarily

“has failed to develop the factual basis of [his]

claim[s] in State court proceedings.” 28 U.S.C.

§2254(e)(2). The Court has held that this text con-

notes a “lack of diligence, or some greater fault, at-

29

tributable to the prisoner or the prisoner’s counsel.”

(Michael) Williams, 529 U.S. at 432 (emphasis add-

ed). Michael Williams’s state habeas lawyer ineffec-

tively failed to develop the factual record for a Brady

claim. See id. at 438. Although his state habeas

lawyer was “on notice” of the potential Brady mate-

rial, he “fail[ed] to investigate these references in

anything but a cursory manner.” Id. at 439-40. His

allegation of ineffective assistance by his habeas

counsel triggered §2254(e)(2)’s opening clause and

barred an evidentiary hearing. Id. at 440; see also

Keeney v. Tamayo-Reyes, 504 U.S. 1, 4, 8-9 (1992) (no

evidentiary hearing where ineffective state habeas

lawyer failed to develop record). If Wilkins’s state

habeas counsel is at fault for not developing the fac-

tual basis of his claim, then Wilkins has failed to de-

velop the factual basis of his claim for purposes of

AEDPA.

The only way to avoid §2254(e)(2)’s opening

clause is to prove that no one from the defense—

including, crucially, the prisoner’s state habeas law-

yer—is at fault for failing to develop the factual rec-

ord in state court. See (Michael) Williams, 529 U.S.

at 434 (noting defense would not be at fault where

“the prosecution concealed the facts”). In (Michael)

Williams, for example, the petitioner alleged juror

bias and prosecutorial misconduct based on the pros-

ecutor’s previous representation of a juror in her di-

vorce from a key prosecution witness. See id. at 440-

441. The Court determined that the petitioner’s

lawyer “had no reason to believe [the juror] had been

30

married to [the witness] or been represented by [the

prosecutor]. The underdevelopment of these matters

was attributable to [the juror] and [the prosecutor], if

anyone.” Id. at 443. Because of their silence on the

matter, “there was no basis for an investigation”;

therefore, §2254(e)(2) did not apply, and the petition-

er was entitled to an evidentiary hearing.

Wilkins, by contrast, has pleaded himself straight

into §2254(e)(2)’s opening clause by attributing the

failure to develop the factual basis of his defaulted

IATC claims to his state habeas counsel. Because

§2254(e)(2)’s opening clause applies, Wilkins cannot

receive a federal evidentiary hearing or introduce

new evidence unless he can satisfy the statute’s

“stringent” exceptions. (Michael) Williams, 529 U.S.

at 424.

Wilkins cannot satisfy the first exception because

his ineffective-assistance claims do not rely on a

“new rule of constitutional law” under

§2254(e)(2)(A)(i). The relevant rule from Strickland

v. Washington has been around for decades.

Wilkins cannot satisfy the second exception be-

cause he cannot prove (and he has not alleged) that

the additional evidence he seeks to introduce “could

not have been previously discovered through the ex-

ercise of due diligence” by trial counsel or state ha-

beas counsel. 28 U.S.C. § 2254(e)(2)(A)(ii). To the

contrary, the premise of his ineffective-assistance

claim is that the necessary mitigating evidence was

readily available—so readily available that no rea-

31

sonable lawyer would have failed to find and present

it. See Rompilla v. Beard, 545 U.S. 374, 382-83

(2005). Because Wilkins can satisfy neither prong of

§2254(e)(2)(A), his request for a federal evidentiary

hearing would fail even before reaching

§2254(e)(2)(B).

Even if Wilkins could meet §2254(e)(2)(A)’s strin-

gent requirements, §2254(e)(2)(B) provides an inde-

pendent bar because it requires proof that “the [here-

tofore-unadduced] facts underlying the claim would

be sufficient to establish by clear and convincing evi-

dence that but for constitutional error, no reasonable

factfinder would have found the applicant guilty of

the underlying offense.” 28 U.S.C. §2254(e)(2)(B).

Subsection (B) prescribes “a strict form of ‘inno-

cence,’ . . . roughly equivalent to the Supreme Court’s

definition of ‘innocence’ or ‘manifest miscarriage of

justice’ in Sawyer v. Whitley.” 2 RANDY HERTZ &

JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRAC-

TICE & PROCEDURE §28.3e, at 1459-60 (5th ed. 2005)

(citing Sawyer v. Whitley, 505 U.S. 333 (1992)). Wil-

kins makes no argument that he is actually innocent.

It is no answer to argue that an ineffective-

assistance claim was not “adjudicated on the merits”

in the state court and therefore not subject to the re-

litigation bar codified in 28 U.S.C. §2254(d). This

Court has made clear that §2254(e)(2)’s “stringent”

restrictions on federal evidentiary hearings are inde-

pendent from §2254(d)’s requirement that prisoners

attempt to overcome the relitigation bar solely on the

32

basis of the state court record. Miller-El, 537 U.S. at

341-42 (Sections 2254(d)(2) and 2254(e)(1) serve as

“independent” hurdles); cf. Pinholster, 131 S.Ct. at

1401 (“At a minimum, . . . § 2254(e)(2) still restricts

the discretion of federal habeas courts to consider

new evidence when deciding claims that were not ad-

judicated on the merits in state court.”); (Michael)

Williams, 529 U.S. at 429 (applying §2254(e)(2) to

claims petitioner did not raise in state court).

Martinez and Trevino do not—and cannot—

excuse Wilkins from §2254(e)(2). While those deci-

sions allowed the ineffective assistance of state ha-

beas counsel to serve as “cause” to excuse procedural

default, they did so in the context of a judge-made,

equitable doctrine, which the Court created and has

discretion to change. “The rules for when a prisoner

may establish cause to excuse a procedural default

are elaborated in the exercise of the Court’s discre-

tion.” Martinez, 132 S.Ct. at 1318. The rules for

when a state prisoner may obtain an evidentiary

hearing or introduce new evidence in federal habeas

are not. No court, including this Court, has discre-

tion to create exceptions to a statute such as

§2254(e)(2). See, e.g., Patterson v. McLean Credit

Union, 491 U.S. 164, 172-73 (1989); accord Square D

Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S.

409, 424 n.34 (1986). To the extent Wilkins’s state

habeas counsel failed to develop the state-court rec-

ord, §2254(e)(2) squarely forecloses him from devel-

oping it now in federal court.

33

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted.

KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant

Attorney General JANUARY 16, 2015

SCOTT A. KELLER Solicitor General RICHARD B. FARRER Assistant Solicitor General

Counsel of Record