Lead Opinion
A state prisoner under a sentence of death, who petitions a United States District Court pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus, is entitled to the appointment of one or more attorneys if he is “financially unable to obtain adequate representation.” 18 U.S.C. § 3599(a)(2).
In this case, Carlton Gary is a Georgia prisoner on death row. Gary received the appointment of two attorneys under § 3599(a)(2) to prosecute his petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia.
In these three appeals, Gary challenges three orders. Appeal No. 09-16198 arises from the District Court’s denial of a motion for funds to pay two experts to appear in person at Gary’s clemency hearing, Dr. Thomas David and Mr. Roger Morrison; Appeal No. 11-10705 involves the District Court’s partial denial of a voucher submitted by Gary’s counsel for payment of services rendered in pursuing the extraordinary motion for a new trial; and Appeal No. 11-15396 addresses the District Court’s denial of a motion for funds to pay an expert, Dr. Greg Hampikian, to assist Gary’s attorneys in connection with the DNA motion.
To address these appeals, it is necessary to briefly recall the criminal conduct that led to Gary’s death-row status and the rulings the District Court made in denying Gary’s petition for a writ of habeas corpus, for they provide the background against which the District Court made the decisions Gary challenges.
I.
A.
Carlton Gary was convicted by a jury in Muscogee County on August 27, 1986, on three counts each of murder, rape, and burglary.
Police had no viable suspects in the case until 1984, when a gun stolen from the*1265 Wynton area in 1977 was discovered in Michigan — a consequence of that state’s gun registration laws — in the possession of Carlton Gary’s cousin. After further investigation, Gary was arrested for burglary on May 3, 1984. His fingerprints matched those taken from the scenes of four of the murders.
Gary admitted to law enforcement officers that he was present at seven of the crime scenes (the eighth he could not remember), but claimed he was only a burglar. He blamed the murders on another[, a boyhood friend, Malvin Crittenden]. Further investigation revealed that in other instances in New York and in South Carolina, Gary had committed violent crimes and blamed others. For example, he raped and murdered an 89 year old woman in her home in Albany, New York in 1970. His fingerprints were found at the crime scene. Gary claimed one John Mitchell committed the murder. Mitchell, however, was acquitted by a jury. In another New York crime involving rape and burglary, Gary admitted only to being a “lookout” and blamed the rape on another. In all these cases, no evidence other than Gary’s own statements and testimony supported his claim that another person was involved in the crime with him.
Gary v. State,
B.
After the United States Supreme Court denied his petition for a writ of certiorari, Gary v. Georgia,
After counsel obtained the services of a serologist, Roger Morrison, they requested an evidentiary hearing. The court granted their request and held a hearing in which Wegel and Morrison explained and commented on the adequacy of the tests Wegel conducted in analyzing the semen. Wegel testified that the donor of the semen was a weak or non-secretor; Morrison testified that he had examined Gary’s saliva and concluded that Gary was a normal secretor, implying that he could not have been the source of the semen. Wegel countered Morrison’s conclusion by stating (1) that secretion levels vary over time and that eighteen years had passed between the dates the donor deposited the semen and the date of Morrison’s examination, and (2) that secretion levels of semen and saliva may differ and that, while Wegel examined semen, Morrison examined saliva. At the conclusion of the hearing, habeas counsel moved the district court for funds to have Gary’s semen tested by Morrison and the results of the test introduced into evidence. The court denied the motion.
Gary,
The District Court held an evidentiary hearing on Gary’s bite-mark claim. “The court indulged the assumption that, if armed with the exemplar, defense counsel, with the assistance of a forensic odontologist, could have, at the very least, cast doubt on whether the bite marks were Gary’s.” Id. at 1256-57. Nonetheless, the court concluded that the unavailability of the bite mark exemplar “d[id] not undermine confidence in the verdict and sentence determined by the jury,” id. (internal citation omitted), and thus denied the claim. We affirmed the court’s denial of the claim. Gary,
As for the bite mark exemplar, we ... examine why, according to the State, the exemplar was not shown to the defense prior to trial. The exemplar was created after the body of rape and murder victim Janet Cofer was discovered on April 19, 1978. Dr. Joe Weber, a Crime Lab pathologist, while assisting Coroner Kilgore in performing an autopsy of the body the same day, observed “what appeared to be tooth marks” on the left breast. He consulted an odontologist, Dr. Carlos Galbreath, and Galbreath created an impression of the bite marks with rubber gel and a syringe. After the gel hardened, Galbreath made an exemplar of the bite mark impression, the standard procedure in dentistry for creating a permanent mold of impressions of teeth. The exemplar was stored in the Coroner’s Office until July 6, 1984, when the Columbus Police Department took possession of the exemplar after Gary was taken into custody.
*1267 Shortly after Gary’s indictment, the prosecutors took the exemplar to a forensic dentist, Dr. Thomas David. He examined the exemplar and concluded that no reliable comparison could be made between the exemplar and Gary’s teeth because Gary had undergone dental work since the last of the rape/murders. The prosecutors accepted Dr. David’s opinion and decided against introducing the bite mark exemplar as evidence at Gary’s trial. Hence, they returned the exemplar to the Coroner’s Office. Although Gary’s trial counsel had read the report of the Cofer autopsy and thus knew of the bite mark, they were not aware that an exemplar of the bite mark had been made or that the prosecutors were privy to Dr. David’s opinion that no reliable comparison could be made between Gary’s teeth and the bite mark.
Given this, it is clear that the State, i.e., the Coroner’s Office, had the bite mark exemplar and that, even with reasonable diligence, defense counsel could not have obtained it. The record is unclear, however, as to whether the exemplar constituted exculpatory evidence, given the dental work Gary underwent between the time of the Cofer rape/murder and his arrest and prosecution. Moreover, it is unlikely that Gary has shown a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” [United States v.] Bagley, 473 U.S. [667,] 682, 105 S.Ct. [3375,] 3383[,87 L.Ed.2d 481 (1985)]. Even if Gary had access to the exemplar at trial, he could only have shown that the bite marks were inconclusive; because of the intervening dental work, any bite mark comparison would neither identify nor exclude him as the perpetrator of the Cofer crime. The jury, in fact, actually heard evidence that the bite marks were inconclusive. Dr. Weber, the State’s pathologist, testified that the marks neither conclusively proved or disproved that Gary was the perpetrator. Taken in context with the other evidence, including Gary’s confession that he was at the Cofer residence when she was murdered, there exists no “reasonable probability” that the admission of an inconclusive bite mark exemplar would have changed the outcome of the proceeding.
Gary,
C.
This brings us to the appeals at hand. We consider them in turn, starting with Appeal No. 09-16198.
II.
A.
On November 30, 2009, the United States Supreme Court denied Gary’s petition to review this court’s decision affirming the District Court’s denial of habeas relief.
On December 9, 2009, Gary moved the District Court for the provision of funds for two experts to appear in person at the clemency hearing, Dr. Thomas David and Roger Morrison. His attorneys would be representing him at the clemency hearing (pursuant to their § 3599(e) appointment), and, according to his motion, the live opinion testimony of these experts was, within the intendment of § 3599(f), “reasonably
Gary asserted that the funds were “reasonably necessary” because Dr. David’s and Roger Morrison’s opinions would likely create doubt- as to his guilt. He asked for $500 to enable Dr. David to appear and opine that a comparison of the bite mark exemplar 'taken from victim Cofer’s left breast to an exemplar of Gary’s teeth made it “more likely than not” that Gary was not “the person who ... left [the] bite mark on Ms. Cofer’s breast.” Gary sought $2,000 to have Morrison testify to the testing of semen samples found on other victims. Morrison would opine that, based on a comparison of Gary’s saliva to the semen samples, Gary could not have been the secretor of the semen. Gary concluded his motion by stating that, in denying his § 2254 petition for habeas corpus relief, “this Court may have disagreed with or minimized the conclusions of [the two experts], but [their] testimony is nevertheless important for the [Board] to make its independent and quite different decision.”
The District Court denied Gary’s motion, concluding that Gary simply wanted to relitigate in another forum the precise issues the court had rejected previously. Indeed, Gary admitted as much; he merely wanted the Board to conduct an “independent” review of the evidence the District Court had considered, hoping that the Board would reach a “quite different decision.” Thus, given that Gary merely wanted to relitigate two of his habeas claims, the court found that the appearance of the two experts in person before the Board was not “reasonably necessary.” He could present the Board with the transcriptions of the testimony the experts had presented in the hearings held on his § 2254 petition. Gary immediately appealed the court’s ruling; meanwhile, the experts appeared at the clemency hearing on December 14.
B.
Gary argues that the District Court abused its discretion in denying the requested funds on the ground that he wanted to relitigate the bite mark and semen issues before the Board.
We have interpreted the § 3599(f) phrase “reasonably necessary” to mean the same as showing a “ ‘substantial need’ for the requested assistance.” Brown,
The problems Gary raises are not significant, nor are they unique to a clemency proceeding. The decisions of courts and adjudicative bodies are frequently made on cold records. Thus, the mere fact that the Board might have been better able to assess the credibility of Gary’s experts if they appeared in person did not mean that their appearances were per se “reasonably necessary,” and that testimony they previously gave under oath in an adversary proceeding before the District Court would not suffice.
We find no abuse of discretion here. It is apparent from Gary’s submissions to the District Court, and to this court on appeal, that the opinions Dr. David and Morrison would express at the clemency hearing were simply a reiteration of the opinions they gave before the District Court.
III.
Appeal No. 11-10705 arises from the denial of a “CJA 30 Death Penalty Proceedings” fee voucher (“CJA 30” voucher) Gary’s appointed counsel submitted to the District Court on December 1, 2010.
We first must ask whether we have jurisdiction to hear this appeal. Ray v. Edwards,
In United States v. Rodriguez,
In sum, we conclude that a District Court’s partial denial of a CJA fee voucher is not a final decision for the purposes of § 1291. Appeal No. 11-10705 must be dismissed for lack of appellate jurisdiction.
We now address Appeal No. 11-15396. Gary moved the Superior Court of Muscogee County, pursuant to O.C.G.A. § 5-5-41(c), to order DNA testing of vaginal contents or vaginal washings obtained from some of the victims.
Gary appeals the District Court’s decision, arguing that the denial of funds for the expert denies him the effective assistance of counsel in obtaining the DNA testing in the Superior Court of Muscogee County, a post-conviction proceeding he claims is within the intendment of § 3599. We have jurisdiction to entertain his appeal.
A.
As in all cases involving the interpretation of a statute, we begin with the language employed by Congress. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. -,
The Supreme Court had occasion to interpret this statute in Harbison v. Bell. In Harbison, the Court said that § 3599 provides indigent defendants with “federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.”
when [counsel] is appointed pursuant to (a)(2), [counsel’s] representation begins with the § 2254 or § 2255 “post-conviction process.” Thus, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to*1274 her appointment. It is the sequential organization of the statute and the term “subsequent” that circumscribe counsel’s representation ....
Id. For counsel appointed to represent an indigent § 2254 petitioner, such as Gary, the relevant starting point is the filing of the habeas petition — an indigent petitioner standing in Gary’s shoes may receive § 3599 funding only for those proceedings that ordinarily occur subsequent to that starting point.
Elaborating on this limitation, the Court emphasized that an indigent habeas petitioner is not entitled to representation for all proceedings that occur subsequent to his attorney’s appointment. Id. at 189-90,
The Government likewise argues that our reading of § 3599(e) would require federally funded counsel to represent her client in any state habeas proceeding occurring after her appointment because such proceedings are also “available post-conviction process.” But as we have previously noted, subsection (e) authorizes counsel to represent her client in “subsequent” stages of available judicial proceedings. State habeas is not a stage “subsequent” to federal habeas. Just the opposite: Petitioners must exhaust their claims in state court before seeking federal habeas relief. That state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust does not change the order of proceedings contemplated by the statute.
Id. (internal citation omitted).
The Court noted, however, that the language of the statute does contemplate some limited federal funding of counsel in state court proceedings. In one footnote, the Court stated that the “other appropriate motions and procedures” language in § 3599(e) indicated that a District Court may determine that counsel appointed to represent a habeas petitioner may need to “exhaust a [federal constitutional] claim [in state court] in the course of her federal habeas representation” and may be compensated for such work. Id. at 190 n. 7,
Gary disagrees, arguing for a broader reading of § 3599 and Harbison. His position is that the filing of the DNA motion is a “subsequent stage of a judicial proceeding” and “post-conviction process.” It follows, he says, that because § 3599 requires that counsel be afforded for “every” subsequent stage of available judicial proceedings and for “all” available post-conviction process, he has a right to federally funded counsel and expert assistance for this motion.
B.
We decline to adopt such a broad interpretation and conclude, instead, that § 3599 does not provide for federally-funded counsel to assist someone standing in Gary’s shoes in pursuing a DNA motion, the results of which might serve as the basis for an extraordinary motion for a new trial. As the language of § 3599(e) and the Court’s opinion in Harbison indicate, federally-funded counsel is available only for certain subsequent proceedings.
Clemency proceedings and hearings on DNA motions are fundamentally different types of proceedings and should be treated differently for purposes of § 3599(a)(2). A clemency proceeding, by its nature, will typically occur subsequent to the prisoner’s unsuccessful collateral attack on the constitutional validity of his conviction or death sentence. See Ga. Comp. R. & Regs. § 475-3-.10(2)(b) (“Th[e] [clemency] decision will be made after it appears that all appeals through the courts have ceased or been exhausted or anytime within 72 hours of the earliest time the execution could take place even if court action is still pending.”).
Gary relies on a footnote in Harbison in arguing that § 3599 could provide for federal representation in a state court proceeding commenced by a prisoner after he has petitioned a federal district court for a writ of habeas corpus. The footnote reads, in full:
Pursuant to § 3599(e)’s provision that counsel may represent her client in “other appropriate motions and procedures,” a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation. This is not the same as elassifying state habeas proceedings as “available post-conviction process” within the meaning of the statute.
The Court is describing a scenario in which the prisoner has filed a mixed § 2254 petition, in that it contains constitutional claims that have been exhausted in state court as well as claims that have not been exhausted and the state courts would still entertain them. In this scenario, the district court is likely to stay the litigation of the habeas case while the prisoner repairs to state court to exhaust the unexhausted claim. Footnote 7 simply acknowledges that the district court, in the exercise of its discretion, may authorize § 3599 counsel to prosecute the unexhausted claim in state court.
This case at hand clearly does not present the scenario contemplated by that footnote. It is one thing for a district court to determine, in its discretion, that it is necessary for court-appointed counsel to “exhaust a claim [in state court] in the course of her federal habeas representation,” id., so that counsel can go forward with her prosecution of the prisoner’s federal habeas petition. It is quite another matter, however, for an indigent prisoner to expect federally-funded counsel to initiate an entirely new state court proceeding to obtain relief from a conviction and death sentence on a state law ground — in Gary’s case, on the ground of newly discovered evidence. The filing of Gary’s DNA motion had nothing to do with “exhausting]” a federal
Finally, we note that there are sound policy reasons why Congress would not provide for federally-funded counsel in independent state court proceedings. Two reasons stand out: first, such funding would raise troubling federalism concerns; and second, the funding would create significant practical problems. The Supreme Court has explained on numerous occasions the importance of “the fundamental policy against federal interference with state criminal prosecutions,” Younger v. Harris,
Based on our reading of § 3599, the language of Harbison clearly limiting the
V.
For the reasons set out above, we DISMISS Appeal No. 11-10705, and we AFFIRM the District Court’s decision in Appeals Nos. 09-16198 and 11-15396.
SO ORDERED.
Notes
. 18 U.S.C. § 3599 addresses both persons under indictment and awaiting trial in federal court and state prisoners under a sentence of death who petition a United States District Court pursuant to 28 U.S.C. § 2254 for writ of habeas corpus. 18 U.S.C. § 3599(a) reads:
(1) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either—
(A) before judgment; or
(B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment;
shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
(2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
. 18 U.S.C. § 3599(e) states:
[E]ach attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
.18 U.S.C. § 3599(f) and (g) state:
(f) Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under subsection (g). No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made a part of the record available for appellate review.
(g)(1) Compensation shall be paid to attorneys appointed under this subsection at a rate of not more than $125 per hour for in-court and out-of-court time. The Judicial Conference is authorized to raise the maximum for hourly payment specified in the paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay for the General Schedule made pursuant to section 5305 of title 5 on or after such date. After the rates are raised under the preceding sentence, such hourly range may be raised at intervals of not less than one year, up to the aggregate of the overall average percentages of such adjustments made since the last raise under this paragraph.
(2) Fees and expenses paid for investigative, expert, and other reasonably necessary services authorized under subsection (f) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge, if the services were rendered in connection with the case disposed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
. Gary’s attorneys in his federal habeas case were John R. Martin and Michael K. McIntyre. They were originally appointed pursuant to 21 U.S.C. § 848(q)(4)(B). The relevant language of the two statutes is the same. We refer to their appointments as if they were made under § 3599 for the sake of clarity.
. The DNA motion was filed pursuant to O.C.G.A. § 5-5-41(c). O.C.G.A. § 5-5-41(c) provides, in relevant part:
(1) Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case, for the performance of forensic deoxyribonucleic acid (DNA) testing.
(2) The filing of the motion as provided in paragraph (1) of this subsection shall not automatically stay an execution.
(3) The motion shall be verified by the petitioner and shall show or provide the following:
(A) Evidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction;
(B) The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial;
(C) The identity of the perpetrator was, or should have been, a significant issue in the case;
*1264 (D) The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case;
(E) A description of the evidence to be tested and, if known, its present location, its origin and the date, time, and means of its original collection;
(F) The results of any DNA or other biological evidence testing that was conducted previously by either the prosecution or the defense, if known;
(G) If known, the names, addresses, and telephone numbers of all persons or entities who are known or believed to have possession of any evidence described by subparagraphs (A) through (F) of this paragraph, and any persons or entities who have provided any of the information contained in petitioner's motion, indicating which person or entity has which items of evidence or information; and
(H)The names, addresses, and telephone numbers of all persons or entities who may testify for the petitioner and a description of the subject matter and summary of the facts to which each person or entity may testify.
. Georgia law requires that a motion for new trial be made before the expiration of a 30-day period from the entry of judgment. O.C.G.A. §§ 5-5-40(a), 5-5-41(a). If not made within that 30-day period, a motion for new trial shall not be "made or received unless the same is an extraordinary motion or case; and only one such extraordinaiy motion shall be made or allowed.” Id. § 5 — 5—41 (b).
. The victims were Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. The crimes against them occurred, respectively, on October 21, October 25, and December 28, 1977. Gary v. Hall,
.In addition to the three victims Gary was charged with murdering, see supra note 7, the State also introduced evidence of four other murders as proof of preparation, plan, modus operandi and identity. Those four victims and the dates of their murders were Fern Jackson, September 16, 1977; Jena Dimenstein, September 24, 1977; Mildred Borom, February 12, 1978; and Janet Cofer, April 19, 1978. Gary,
. The Superior Court for Butts County denied Gary's petition for a writ of habeas corpus, the Georgia Supreme Court denied a certificate of probable cause to appeal, and the United States Supreme Court denied certiorari review. See Gary,
. The victim was Janet Cofer. See supra note 8.
. See Gary v. Hall, -U.S.-,
. Dr. David had appeared before the District Court at a hearing on February 14, 2007; Morrison appeared at a hearing held on November 21, 2000. The District Court had previously approved the expenditure of $7,000 for Dr. David’s work and $2,000 for Morrison’s.
. Based on a letter written by Gary's counsel on April 16, 2010, the experts appeared without being paid; counsel personally guaranteed payment of their fees.
.We review the decision of a District Court to deny funds for court-appointed experts for abuse of discretion. See United States v. Brown,
.The dissent predicts that “[t]o deny expert funding on the ground that the testimony has already been presented during the course of collateral review is to render § 3599(f) nearly meaningless,” post at 3, and that this decision "requires [the] denial of the overwhelming majority of (if not all) requests for expert assistance at a clemency hearing because none will be 'reasonably necessary,' ” post at 4. We are not persuaded. We are satisfied that the able district judges of this circuit will exercise their discretion based on what the prisoner says in his motion for expert assistance and the comprehensive record before the court. As we have noted, abuse of discretion review is exceedingly deferential. See Childers v. Floyd,
. Other circuits have concluded that where an indigent defendant seeks funding to provide testimony that is merely cumulative of evidence already in the record and when the indigent prisoner does not persuade the court that there are any particular circumstances of the case warranting in-person testimony, a District Court does not abuse its discretion in refusing to provide funds. See Fautenberry v. Mitchell,
. For an example of the CJA 30 form, see U.S. Courts, CJA-0030, Death Penalty Proceedings: Appointment of and Authority to Pay Court-Appointed Counsel (last revised Feb. 2012), available at http://www.uscourts. gov/uscourts/formsandfees/forms/cja/cja30. pdf.
. Gary claimed that he was preparing a second application for clemency and that the application would be covered by § 3599. The District Court approved compensation for such preparation.
. Other circuits agree that CJA attorney-compensation rulings are not appealable under 28 U.S.C. § 1291. See In re Carlyle,
.Of course, there are some minor differences. For example, in a death-penalty appointment there is no statutory compensation maximum, interim payments are recommended, and different voucher forms are used. See 7 Guide to Judiciary Policy: Defender Services, pt. A, § 630 (last revised 2011), available at http://www.uscourts.gov/ FederalCourts/AppointmentOfCounsel/ Viewer.aspx?doc=/uscourts/FederalCourts/ AppointmentOfCounsel/vol7/VoL07.pdf.
. The dissent claims that the court "reinterprets circuit precedent to the point of nonrecognition,” stating that it is important to decide "what the district court did — and did not — decide in the January 21, 2011 order at issue in Appeal No. 11-10705.” Post at 1281-82. We agree that it is important to be crystal clear in what was and was not decided, as well to understand the procedural posture of the dispute. As we describe in the introduction to this part, we must first understand the history behind the January 21, 2011 order. On December 1, 2010, Gary's attorneys submitted a CJA 30 voucher for their compensation. On December 10, 2010, the District Court denied part of their requested compensation. On December 23, 2010, Gary's attorneys filed a motion for reconsideration of the denial of compensation. Then, on January 21, 2011, the District Court denied part of the compensation Gary’s attorneys requested. Thus, the issue before this court is whether the District Court erred in denying part of Gary's attorneys’ compensation requested in the CJA 30 voucher. The issue is not whether the District Court erred in denying a motion by Gary to expand the scope of his appointed attorneys’ representation to include the prosecution of his DNA motion and a new trial, or, alternatively, to appoint counsel to represent him in those proceedings. In the plainest of terms, this is a case about Gary’s attorneys seeking compensation, not Gary seeking representation.
The dissent implies that we should disregard the procedural posture of the case. Even though the District Court’s decision was an otherwise non reviewable CJA-voucher compensation decision, such a decision can morph into a reviewable denial of Gary’s right to representation, the dissent implicitly argues, because of the reason given to deny Gary’s attorneys’ compensation. The dissent highlights two controlling cases — Harbison v. Bell,
L.Ed.2d 347 (2009) and In re Lindsey,
Such reliance is misplaced. Indeed, to realize why these cases actually support our understanding, we must ask this question: what was the procedural posture in those two cases? In Harbison, the motion at issue was filed in a live controversy and was entitled, "Request for Leave to Expand Appointment Order.” See Harbison v. Bell, 1:97-CV-52,
Rodriguez decided that CJA compensation decisions are not appealable. See United States v. Rodriguez,
. The victims are identified in notes 7 and 8, supra.
. The Superior Court ordered tests of the following items: a slide from a vaginal washing of Jean Dimenstein, a swab of Martha Thurmond's abdomen, a slide from a vaginal washing of Martha Thurmond, and a slide from vaginal contents of Kathleen Woodruff.
. On August 25, 2011, the Superior Court ordered DNA testing of the following items found at the scene of Gertrude Miller’s rape and beating: a white sleeping gown, underclothing, and a white slip. Gertrude Miller survived the attack and testified at Gary’s trial, identifying him as her assailant. See supra note 8.
. In its order denying Gary’s request for additional funding, the District Court indicated that, on June 4, 2010, it approved funding for Dr. Hampikian with the expectation that Gary was preparing to file a second application for clemency and, to assist counsel in such preparation, would seek funds for expert services under § 3599(f). A second application for clemency was not forthcoming, however, so the District Court concluded that Gary wanted the additional funding to finance his motion for a new trial.
.After appointing counsel pursuant to § 3599(a)(2), the District Court retains jurisdiction to monitor the appointment administratively, until such time as the prisoner is no longer entitled to representation in a posthabeas case proceeding designated in § 3599(e), see supra note 2. Compensation issues that arise ancillary to the counsel's § 3599(a)(2) appointment, including the approval of CJA 30 vouchers for attorney's fees and the approval funding of "reasonably necessary'' expert services provided by § 3599(f), are examples of issues the District Court retains power to consider. The case remains live for that limited purpose.
This appeal is of the denial of a motion filed by Gary, asserting his right under § 3599(f)
In sum, we conclude that the District Court had retained jurisdiction to determine the scope of duties encompassed under the § 3599(a)(2) appointment and the availability of expert funds under § 3599(f), and whether the DNA motion fell within that ambit of representation. We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s determination on Gary's motion, which is a final decision. See Harbison v. Bell,
. Two limitations that are not relevant here are: (1) if his conviction or death sentence is set aside, the prisoner is not entitled to the appointment of counsel under § 3599 for retrial in state court, despite the fact that the retrial would occur subsequent to the conclusion of the prisoner’s federal habeas case, Harbison v. Bell,
. An execution could not go forward until the federal courts have considered and disposed of the prisoner's petition for a writ of habeas corpus. See Lonchar v. Thomas,
. The dissent claims that a motion for a new trial is like a clemency hearing in that each presents “a final chance to rectify any fundamental miscarriage of justice.” Post at 1287. The dissent continues, noting that extraordinary motions for a new trial can be filed "at any time after the expiration of the thirty-day statutory period,” id. at 1288 (emphasis omitted), and are "typically” filed after the prisoner has been denied federal habeas relief, id. at 1287. The dissent concludes that, as a result, the two are alike in that "[t]he most appropriate time for an individual to file one of these motions would undoubtedly be after all the evidence has been investigated, the facts developed, and the arguments made in the traditional channels of review (i.e. state postconviction and federal habeas proceedings).” Id. (emphasis omitted). In taking this view, the dissent draws an indefensible parallel between an extraordinary motion for a new trial and a clemency proceeding.
A clemency proceeding is, as the Supreme Court observed, a final chance to rectify any fundamental miscarriage of justice. See Herrera v. Collins,
An extraordinary motion for a new trial is entirely different. Georgia law, for example, is clear in that an extraordinary motion for a new trial is subject to stringent limitations and cannot be used as a "final” chance for relief.
*1276 The statutes which control extraordinary motions for new trial based on newly discovered evidence require a defendant to act without delay in bringing such a motion. OCGA §§ 5-5-23 and 5-5-41 (Code Ann. §§ 70-204 and 70-303). The obvious reason for this requirement is that litigation must come to an end.
Drane v. State,
Thus, unlike a clemency proceeding, which commonly occurs as a final chance to prevent a miscarriage of justice, the time for filing a motion for a new trial based on newly discovered evidence depends entirely on when the prisoner discovered the evidence. It is simply incorrect to assert that an extraordinary motion for a new trial is "typically” filed after a federal habeas petition or that an extraordinary motion for a new trial would be held in reserve as a measure of last resort. On the other hand, a prisoner who obtains evidence that would support a clemency application can sit on that evidence until the last possible moment. In sum, if a prisoner discovers new evidence that might prompt the court in which he was convicted and sentenced to grant a new trial (or a new sentencing hearing), the prisoner must act with dispatch. This means that if, after filing a § 2254 petition, a prisoner discovers evidence that would warrant the granting of a new trial, the prisoner runs the risk of having his motion for new trial declared untimely if he does not file his motion immediately.
. In cases like Gary’s, where DNA testing was not available at the time of conviction,
. The dissent claims that the Supreme Court has dismissed federalism as a reason for concern. See post at 26. Surely, it is beyond serious dispute that the potential interference arising from close federal supervision over state court proceedings pertaining to an extraordinary motion for a new trial — a proceeding that may last for a significant period of time — presents far more compelling reasons to be concerned than the risk of federal interference with a single clemency board review that may or may not even involve a single hearing. This is yet another illustration of the substantial differences between a clemency proceeding, on the one hand, and an extraordinary motion for a new trial containing issues that have not been presented to the district court on the other.
Dissenting Opinion
dissenting:
The majority’s disposition of this case delivers a powerful blow to the far-reaching guarantees of representation and expert assistance embodied in 18 U.S.C. § 3599. In the course of the opinion, it unnecessarily forecloses expert funding for practically any individual represented by § 3599 counsel, misstates this circuit’s jurisdictional precedent, and misinterprets the scope of a federal statute. I cannot join in its disposition of these appeals.
I
Gary sought to utilize the clemency hearing to cast doubt on his guilt for the charged crimes. The means by which this could be accomplished entailed the presentation of medical testimony that neither (1) the bite mark on one victim nor (2) the semen found on another victim was consistent with Gary being the perpetrator. The two experts, Gary contends, would testify at the hearing to the high probability that those pieces of evidence were inconsistent with Gary’s biology. Because the majority finds that the request for experts merely encompassed “reiteration of the opinions [the experts] gave before the District Court,” it concludes that the experts were not reasonably necessary to the clemency-hearing representation. Maj. Op. at 1270. This holding fails to appreciate the unique character of clemency, as opposed to federal habeas, and broadly forecloses funding for expert testimony that has previously been presented to any court.
The clemency board’s “view of a case necessarily differs from that of a local court or law enforcement agency.” Georgia State Board of Pardons and Paroles, Clemency, http://www.pap.state.ga.us/ opencms/export/sites/defaulVclemeney/ (last visited June 18, 2012); see also Ohio Adult Parole Auth. v. Woodard,
To deny expert funding on the ground that the testimony has already been presented during the course of collateral review is to render § 3599(f) nearly meaningless. The majority holds that expert services are not “reasonably necessary” for representation in a clemency proceeding because that testimony is available in the form of a transcript. But won’t this always be the case? The substantive-type claims for which experts are requested will almost certainly have served as a ground for relief in state postconviction and federal habeas proceedings, and transcripts of that testimony would be available to a clemency petitioner. A death-sentenced inmate would be ill advised to hold on to potentially meritorious claims in hopes that they could serve as the basis of a compelling clemency petition. The majority’s reasoning on this point requires denial of the overwhelming majority of (if not all) requests for expert assistance at a clemency hearing because none will be “reasonably necessary.” And it is particularly unjust here, as Gary had no indication that during federal habeas proceedings his counsel should be developing testimony for an actual innocence claim to present to a clemency board.
In a footnote, the majority recognizes two cases as disposing of a similar issue involving duplicative testimony. Neither offers a convincing parallel to the issue we confront. The majority points to Fautenberry v. Mitchell,
In arriving at its conclusion, the majority construes the statutory phrase “reasonably necessary” to require a “substantial need” for the requested expert services. See Maj. Op. at 1269. This standard is derived from Fifth Circuit case law, e.g. Riley v. Dretke,
I do not by any means imply that expert testimony is always “reasonably necessary” to representation of a clemency petitioner. But I cannot justify depriving a death-sentenced individual of live, unconstrained, expert testimony on the ground that reciting it from a transcript is an adequate substitute. The duty of the clemency board is to make an independent determination about the sentence that has been handed down to the petitioner, and I believe that the expert testimony seeking to cast doubt on Gary’s role in the crimes is reasonably necessary for representation in that proceeding. At the same time, I recognize that under the terms of the statute, the district court could find that expert services were reasonably necessary for representation but nevertheless deny funding. See 18 U.S.C. § 3599(f) (“Upon a finding that ... expert ... services are reasonably necessary for the representation of the defendant, ... the court may authorize the defendant’s attorneys to obtain such services .... ” (emphasis added)). I would thus vacate the district court’s order and remand to the district court to determine whether it will exercise its discretion to allow funding for these reasonably necessary services.
II
Next, in concluding that we lack jurisdiction to review the district court’s order denying reconsideration of its denial of funding, the majority reinterprets circuit
Pursuant to 28 U.S.C. § 1291, we have jurisdiction to consider “all final decisions of the district courts.” Where the litigation underlying a challenged order has been conclusively resolved, “[w]e treat the postjudgment proceeding as a free-standing litigation.” Thomas v. Blue Cross & Blue Shield Ass’n,
Gary appeals from the order denying reconsideration of the denial of funds for his representation in the state motion for new trial. This was the only issue presented in the motion for reconsideration. In that order, the district court finally, conclusively, and expressly ruled that no payment would be authorized for appointed counsel’s work on the state motion— period.
But I do not even have to independently arrive at this conclusion, as controlling precedent also confounds the majority’s jurisdiction-based dismissal. In Harbison, the Supreme Court resolved a question about the scope of representation under § 3599 as related to state clemency. The district court in that case issued an order practically indistinguishable from the one the district court issued here, finding conclusively that the scope of § 3599 did not contemplate federally funded counsel’s representation of a petitioner in state clemency proceedings. Compare Harbison v. Bell, No. 97-52,
What is more, we have previously exercised jurisdiction to consider the scope of representation beyond clemency. In In re Lindsey, a panel of this court considered a petition for mandamus to require appointment of counsel for state proceedings concerning a death-sentenced inmate.
To justify dismissal, the majority cites to United States v. Rodriguez as broadly holding that “a district court’s decision denying an appointed attorney’s application for compensation under the [CJA] [is] not a final decision reviewable under § 1291.” Maj. Op. at 1270 (citing
An order administratively approving (or disapproving) of funds within the scope of an attorney’s federal representation is not remotely comparable to an order conclusively determining whether certain proceedings fall within the representation authorized by § 3599. The order on appeal in Rodriguez decided fees for work completed within the scope of the attorney’s authorized CJA representation. It did not
The Fifth Circuit confronted a case in the same context as ours and explicitly recognized its jurisdiction to resolve the issue. See Clark v. Johnson,
The [district court’s] order fully and finally disposes of [counsel’s] request for reimbursement, an issue that is separate from the merits of the federal habeas corpus proceeding. The district court necessarily interpreted the meaning of “proceedings for executive or other clemency” under § 848(q)(8) to exclude state clemency proceedings. Such a decision is qualitatively different from approving or disapproving the amount of expenses reasonably and necessarily incurred by counsel as it definitively determines whether such services are compensable under the Act as a matter of law.
Id. at 461. Clark is indistinguishable from the issue at hand and demonstrates that we have jurisdiction to directly address Gary’s claim on the merits.
As a final thought, it seems that the majority’s conclusion that we may exercise jurisdiction over the district court’s denial of expert fees under § 3599(f) applies with equal force to permit review of the denial of representation under § 3599(e). The majority concludes that the district court had jurisdiction “to determine the scope of duties encompassed under the § 3599(a)(2) appointment,” including “whether the DNA motion fell within that ambit of representation.” Maj. Op. at 1273 n.26. It then concludes that we have jurisdiction under § 1291 to review that determination, but only in the context of its order denying expert fees. Id. The scope of counsel’s federal appointment is exactly what the district court decided in its January 21 order denying reconsideration. Strangely, the majority utilizes the denial of expert fees as a means to review the scope of counsel’s representation under § 3599(e), which produces the same result as if it had followed precedent and deemed the January 21 order final in the first place. It strikes me as more straightforward to treat the order actually limiting counsel’s
In sum, this is not a situation where the district court found that the petitioner was entitled to a lesser fee than claimed and reduced it accordingly; it is a case where, outright, the district court conclusively ruled that no fee was available under the statute for this work. I therefore find that we have jurisdiction to consider the denial of compensation for representation on the state motion.
Ill
I further disagree with the majority’s perceived limitation on the scope of § 3599, which is based neither in the text of the statute nor the rationale of Harbison. I recognize that, without consideration of the statute or case law, it appears strange at first glance for federally appointed counsel to receive federal funds for representation in a purely state proceeding. But that is what the Court approved in Harbison based on the language of § 3599 — language that the majority recognizes is “indeed broad” but then quickly narrows. And I conclude that the language of § 3599 and the Court’s Harbison decision require that appointed counsel represent Gary in the proceedings at issue.
A
Federal law entitles a federal habeas petitioner to appointment of counsel when he is financially unable to obtain adequate representation. 18 U.S.C. § 3599(a)(2). An appointed attorney’s duties are governed by subsection (e):
[Ejach attorney ... shall represent the [petitioner] throughout every subsequent stage of available judicial proceedings, including ... all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the [petitioner] in such competency proceedings and proceedings for executive or other clemency as may be available to the [petitioner].
18 U.S.C. § 3599(e) (emphases added). Harbison clarified that under the plain language of the statute, federally appointed counsel’s duties extend to state clemency proceedings.
One need only look to relevant case law in order to figure out that death-sentenced petitioners typically file these sorts of extraordinary motions for a new trial after conclusion of their federal habeas proceedings. See, e.g., In re Davis,
Our analysis is also informed by looking to what would not be a subsequent stage of proceedings. In Harbison, the Supreme Court provides the quintessential example: state postconviction litigation.
Instead of considering the “ordinary course” of proceedings for a death-sentenced inmate, the majority has crafted a novel standard whereby § 3599(e) is informed by the specific course of proceedings contemplated by the state in which the petitioner is imprisoned. In examining the representation at issue here, the majority relies almost exclusively on the idea that clemency comes after federal habeas proceedings have concluded, while the state motion for new trial can be filed at any time. Maj. Op. at 1276-78. But it is not so invariably true that clemency proceedings occur after the conclusion of federal habeas. In Utah, for example, a death-sentenced inmate can petition for clemency at any time after conclusion of the direct appeal. Utah Admin. Code r. 671-312-3(1); see also Conn. GemStat. § 54-130a(a), (b); State of Delaware, Rules of the Board of Pardons, http:// pardons.delaware.gov/information/rules. shtml#Rule7 (last visited June 15, 2012) (excluding death-sentenced petitioners from the typical rule that applications for commutation must follow the conclusion of collateral review); Louisiana Department of Public Safety and Corrections, Rules, http://www.doc.louisiana.gov/view.php? cat=13&id=83 (last visited June 15, 2012) (requiring under Rule ID that a petition for clemency be made within one year of denial of direct appeal); Washington State Clemency & Pardons Board Policies, http://www.governor.wa.gov/clemency/ documents/policies.pdf (last visited June
Additional considerations bear on the propriety of finding that § 3599 encompasses this request. The representation here involves work on an extraordinary motion for new trial — the only one that Gary can present under state law. If granted, the federal appointment must end because retrial is a new proceeding, and the state would be required to appoint counsel to Gary for retrial. Harbison,
Unlike state postconviction proceedings instituted after the conclusion of federal habeas review, the extraordinary motion for new trial does not constitute a new proceeding any more than state clemency would. It is merely one of the “multiple assurances that are applied before a death sentence is carried out.” Kansas v. Marsh,
B
The district court order denying funding for expert services, Appeal No. 11-15396, was premised on the conclusion that § 3599 does not cover counsel’s representation on the state motion. Because I find that it does, I would vacate its order and remand for consideration of whether those services were reasonably necessary to counsel’s representation under the statute and whether funding should be provided.
IV
The majority’s resolution of the issues presented here works to undermine the text of § 3599 and Supreme Court precedent. It also disturbs well-settled law governing our ability to review final orders. With its opinion, the majority offers up
. During federal habeas proceedings, we reviewed the potential exculpatory impact of the bite-mark exemplar but did not examine the value (if any) of the other testing requested. For Gary’s claims under Ake v. Oklahoma,
. At the time this expert testimony was developed, Harbison had not been decided, and controlling Eleventh Circuit precedent did not extend appointed counsel’s representation to clemency proceedings. See King v. Moore,
. The Fifth Circuit has not applied this standard in a published opinion after Riley, nor have we acknowledged it in any case other than Brown.
. It cannot matter for our jurisdictional analysis that appointed counsel originally presented the district court with one CJA voucher requesting payment for work completed on two distinct proceedings (state clemency and the state motion for new trial). To hold that this would be appealable if the requests were made on two different sheets of paper, or to impose a "magic words” requirement on the label of the filing, is impractical and requires the sort of hypertechnical construction that the Supreme Court has specifically instructed us not to employ. See Eisen,
. We followed a path similar to the Sixth Circuit and arrived at the same conclusion prior to the Supreme Court's Harbison ruling. See King v. Moore,
. This was also the relevant holding in the cases cited by the majority in footnote 19, none of which involved a district court’s determination that the services for which compensation was requested fell outside the scope of representation authorized by the federal statute. See In re Carlyle,
. Clark found jurisdiction proper as a final order under § 1291 and under the collateral order exception to § 1291’s finality requirement.
. Nor does § 3599 provide a prisoner with a government-issued blank check, as the statute sets the maximum compensation for the attorney's hourly representation and for the expert services requested. 18 U.S.C. § 3599(g). Any requested increase in payment is subject to court approval. Id.
. Concurring in the judgment, Chief Justice Roberts provided other examples of proceedings that would not be subsequent stages, including "a challenge to prison conditions or a suit for divorce in state court.” Harbison,
. The Court approved of representation in some state-specific litigation germane to counsel's federal habeas representation. Harbison,