Carlton Michael Gary v. Warden, Georgia Diagnostic Prison
686 F.3d 1261
11th Cir.2012Background
- Gary, a Georgia inmate on death row, was appointed two §3599(a)(2) counsel to pursue a federal habeas petition under 28 U.S.C. §2254.
- After denial of habeas relief, Gary pursued clemency with his appointed counsel and then pursued a state DNA/motion and a potential extraordinary motion for a new trial.
- The district court denied funding for two live experts to testify at the clemency hearing and later denied a CJA 30 voucher for DNA-related work.
- Gary sought funds for a DNA expert and for live testimony at clemency, arguing such testimony was reasonably necessary to effective representation.
- Georgia Superior Court directed limited DNA testing; Gary sought additional funding for Hampikian to assist with further DNA testing.
- The district court denied funding for the DNA testing effort, leading to three appeals challenging the scope of §3599 funding and the related fee decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §3599(e): when does representation extend to subsequent proceedings? | Gary argues DNA and state-motions fall within subsequent-stage representation. | Gary's position broad; Harbison limits to clemency/subsequent stages. | §3599 does not broadly cover the DNA motion as a subsequent-stage proceeding. |
| Live testimony at clemency: was live expert testimony reasonably necessary? | Gary contends live testimony is necessary to assess credibility and aid clemency. | Court may rely on transcripts; clemency board may consider paper record. | District Court did not abuse discretion; in-person testimony was not reasonably necessary. |
| Jurisdiction over 11-10705 CJA voucher appeal | Gary seeks review of denial of compensation for state-motion work. | Rodriguez holds CJA voucher denials are not final; no jurisdiction. | Appeal 11-10705 dismissed for lack of jurisdiction. |
| DNA funding under §3599(f) for Hampikian | Funding for Hampikian should be within §3599(f) as reasonably necessary to representation. | DNA motions in state court are not within §3599 scope post-Harbison. | DNA-motion funding not within §3599 scope; denied. |
| Scope of representation after Harbison decision | Harbison allows some state-court work; argues broader interpretation. | Harbison limits to incidents that ordinarily follow habeas; state DNA/NEW-TRIAL not included. | Court reaffirmed Harbison's limits and denied broader funding. |
Key Cases Cited
- Harbison v. Bell, 556 U.S. 180 (U.S. 2009) (limits federally funded counsel to state clemency representation; defines 'subsequent' proceedings)
- United States v. Rodriguez, 833 F.2d 1536 (11th Cir. 1987) (CJA compensation decisions are not final appealable orders)
- In re Lindsey, 875 F.2d 1502 (11th Cir. 1989) (petition for mandamus re: state proceedings; scope of §3599)