Opinion
3:99-CV-0808-G.
June 15, 2000
MEMORANDUM ORDER
Before the court is the petitioner Toronto Markkey Patterson's ("Patterson's") Second Application for Funds to Obtain Investigative Assistance under 21 U.S.C. § 848(q)(9), filed on May 18, 2000. On January 6, 2000, Patterson filed an application for investigative funds which was denied by this court without prejudice by order filed on February 8, 2000.
Patterson's second application states three general justifications for the allocation of investigative funds. First, Patterson alleges that the money is necessary so that he might:
[I]nvestigate the existence of non-record based claims not raised either on direct appeal or on collateral attack for which he may be able to demonstrate "cause" or "prejudice" for the apparent procedural default.
See Second Application for Funds to Obtain Investigative Assistance Under 21 U.S.C. § 848(q)(9) ("Application") at 4. Next, Patterson alleges that an investigator is necessary because he testified at his trial and maintains his innocence to the present day. Id. Finally, Patterson asserts that he has "reason to believe" that substantial evidence in mitigation of the death penalty exists which should have been presented at the sentencing phase. Id. The specific nature of the alleged mitigating evidence is not discussed. Attached to Patterson's application for funds are copies of the first state habeas application and the order of the Texas Court of Criminal Appeals dismissing the subsequent state habeas application as abusive. Neither of the exhibits in and of themselves represent any evidence that additional claims exist, or that Patterson is "actually innocent."
Under § 848, the district court, "[u]pon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, . may authorize the defendant's attorneys to obtain such services. . . ." See 21 U.S.C. § 848(q)(9). Thus, to be entitled to the assistance of an investigator, Patterson has the burden to show and must show that the requested assistance is reasonably necessary for his representation. Hill v. Johnson, 210 F.3d 481, 487 (5th Cir. 2000) (citing Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.), cert. denied, 522 U.S. 963 (1997)). To this point, Patterson has failed in his application for investigative funds to justify his need for these funds. Instead, he offers what could be characterized as conjecture that additional claims could be raised if he had an investigator. Moreover, Patterson also speculates, again without offering any proof, that any potential claim that has not yet been discovered would, nonetheless, be sufficient to show "cause" or "prejudice" to excuse any applicable procedural bars. This claim is not sufficient to meet Patterson's burden under the statute. As a result, the only finding that this court can make under the applicable section is that Patterson has not yet shown that the requested funds are "reasonably necessary" under § 848. See, e.g., Hill, 210 F.3d at 487 (finding no abuse of discretion in refusing funds where additional expert/investigator would add nothing to a claim based upon a record of a state habeas hearing); Fuller, 114 F.3d at 502 (finding no abuse of discretion in denial of investigative funds where petitioner failed to say exactly how he would employ the requested experts and failed to show "cause" and "prejudice" to overcome procedural bar, or that a miscarriage of justice would result).
This court is certainly cognizant of Patterson's claim that his state habeas counsel conducted little or no investigation into non-record based claims, and of his claim that heretofore he has had to rely on the limited resources of volunteer and amateur investigators in trying to develop facts that would support viable habeas corpus claims in preparing his habeas application. See Objections to Findings and Recommendation of United States Magistrate Judge ("Objections") at 5. The court also does not mean to foreclose Patterson from ever receiving a properly funded, professionally conducted investigation into the validity of his conviction and death sentence. The fact remains, however, that in his Application, Patterson has not yet shown that the funds requested are "reasonably necessary" under § 848. For the above reasons, Patterson's second Application for Investigative Funds is denied without prejudice to his filing another Application at a later date with sufficient facts showing that such funds are reasonably necessary.
SO ORDERED.