Case: 22-70010 Document: 00516530963 Page: 1 Date Filed: 11/02/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 22-70010 November 2, 2022
Lyle W. Cayce
Tracy Lane Beatty, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CV-225
Before Richman, Chief Judge, and Elrod and Haynes, Circuit Judges.
Per Curiam:
Tracy Beatty is scheduled for execution on November 9, 2022. Beatty
was convicted and sentenced to death in 2004 for the capital murder of his
mother, Carolyn Click. This case has a long history of habeas litigation.
Further details of Beatty’s murder conviction and subsequent post-
conviction litigation need not be repeated here to resolve the issues raised on
appeal, and they can be found in the prior proceedings. See Beatty v. Director,
TDCJ-CID, No. 4:09-CV-225, 2013 WL 3763104, at *1 (E.D. Tex. July 16,
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No. 22-70010
2013) (providing procedural history in denial of petition for writ of habeas
corpus).
In early September of 2022, when there was no pending litigation,
Beatty moved the district court under 18 U.S.C. § 3599(e) to compel the
Texas Department of Criminal Justice to unshackle his hands during expert
evaluations that his counsel had scheduled for later in September. The
district court dismissed the motion for lack of jurisdiction. Beatty appealed
and filed a concurrent motion to stay his execution. We AFFIRM the
judgment of the district court and DENY as moot Beatty’s motion for stay.
I.
“We review questions of subject matter jurisdiction de novo.” Davis
v. Fort Bend County, 893 F.3d 300, 303 (5th Cir. 2018). And whether
18 U.S.C. § 3599 grants district courts jurisdiction to compel state officials to
act is a question of subject-matter jurisdiction. See Ayestas v. Davis, 138 S. Ct.
1080, 1088–92 (2018) (holding that section 3599 grants courts judicial, not
administrative, power); cf. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992)
(explaining that the extent of the federal judicial power is a jurisdictional
question). We have jurisdiction over this appeal under 28 U.S.C. § 1291.
II.
“Section 3599(a) authorizes federal courts to provide funding to a
party who is facing the prospect of a death sentence and is ‘financially unable
to obtain adequate representation or investigative, expert, or other
reasonably necessary services.’” Ayestas, 138 S. Ct. at 1092 (quoting 18
U.S.C. § 3599(a)(1)). Appellant argues that sections 3599(e) and 3599(f)
provide not only funding authorization but also a grant of jurisdiction for
federal courts to oversee the implementation of “reasonably necessary”
services by ordering state officials to comply with prisoners’ requests related
to such services.
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Appellant is mistaken. Section 3599 does not allow a district court to
provide the relief Appellant seeks because it is a funding law, not a law that
grants federal courts authority to oversee the scope and nature of federally
funded legal representation.
A.
The text of sections 3599(e) and 3599(f) is clear. “Section 3599, titled
‘Counsel for financially unable defendants,’[1] provides for the appointment
of counsel for two classes of indigents . . . .” Harbison v. Bell, 556 U.S. 180,
184 (2009). Appellant in this case falls into the second class: those who are
or become indigent “after the entry of a judgment imposing a sentence of
death but before the execution of that judgment.” 18 U.S.C. § 3599(a)(1)(B).
Appointed counsel for such an indigent shall, until replaced, represent the
prisoner throughout “all available post-conviction process.” Id. § 3599(e).
After it provides for appointing counsel, the statute authorizes funding for
the representation and any reasonably necessary services that go along with
it. Ayestas, 138 S. Ct. at 1092. The statute’s granting of funding has earned
it the description of being the “federal public defender statute.” Rhines v.
Young, 140 S. Ct. 8, 8 (2019) (mem.) (Sotomayor, J., respecting the denial of
certiorari).
Appellant’s argument that the scope of the statute goes further than
merely allowing for the appointment and payment of counsel hangs on his
reading of section 3599(f). Because this is a matter of statutory
1
As the Court noted in Harbison v. Bell, 556 U.S. 180 (2009), section 3599 “uses
the term ‘defendant’ to describe postconviction litigants.” Id. at 185 n.2. The terms
“defendant” and “prisoner” will thus be used interchangeably to describe Beatty in this
opinion.
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interpretation, and because the relevant text is not lengthy, it is worthwhile
to reproduce the exact language below:
(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). . . .
18 U.S.C. § 3599(f).
From this text, Appellant argues that “Congress has therefore
explicitly conferred jurisdiction on federal courts to ‘authorize’ counsel to
‘obtain’—not just receive funding for—expert services.” So far, Appellant
is correct. The statute not only allows counsel to receive money allocated to
expert services; it also allows counsel to spend that money on hiring experts.
That is, it allows counsel to procure or purchase such services on behalf of
the defendant. 18 U.S.C. § 3599(f); see also Obtain, Black’s Law Dictionary
(11th ed. 2019) (“to procure”).
Where Appellant goes too far is reading the word “obtain” as
authorizing courts to take any and every step that a prisoner may request
related to the provision of expert services. Appellant argues that “in light of
Respondent’s recently created rule [regarding shackling prisoners’ hands],
obtaining the services required a court order directing the Respondent to
refrain from impeding the delivery of routine expert services.” This
purportedly follows from the fact that if section 3599 authorizes a court “to
do no more than cut checks,” then state officials could be incentivized to
obstruct access to the services that are being paid for.
This way of reading the law strays from the statute’s text and into
purported policy justifications for the law’s existence. That is, this is really
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an argument about how Appellant thinks the law’s enforcement ought to be
structured, not an argument about the ordinary, semantic content of the
law’s words. Appellant’s argument seems to be that when statutes authorize
funding, they should also confer jurisdiction or provide a cause of action to
determine the scope of all activities that are funded by the statute.
However, we may not use policy in such a way to rewrite Congress’s
laws. As is the case for statutory interpretation in general, and for this law in
particular, our court “is not tasked with interpreting § 3599 in a way that it
believes is consistent with the policy outcome intended by Congress.”
Harbiso, 556 U.S. at 198 (Thomas, J., concurring in the judgment). After all,
“Congress’s intent is found in the words it has chosen to use.” Id.; see also
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 347 (“[W]e are bound to operate within the framework of the words
chosen by Congress and not to question the wisdom of the latter in the
process of construction.”).
Congress, as the policymaker in our constitutional order, has chosen
to write laws that specifically grant causes of action that provide a federal
court with jurisdiction to issue a remedy. See, e.g., 42 U.S.C. § 1983. The
explicit language that Congress used in section 1983 is nowhere to be found
in section 3599. Compare id. (“Every person who . . . subjects . . . any citizen
of the United States . . . to the deprivation of any rights . . . shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding
for redress . . . .”), with 18 U.S.C. § 3599 (“[T]he 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 . . . .”).
Ruling out policy-based arguments, then, we must turn to whether the
plain language of the statute empowers a federal court to compel state
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officials to disregard their prison-visitation procedures in connection with the
federal court’s funding of expert services. It does not.
The ordinary use of the phrase “obtain counsel” or “obtain expert
assistance” is to hire the relevant kind of professional. Phrases denoting this
meaning appear frequently. For example, in Miranda v. Arizona, 384 U.S.
436 (1966), the Supreme Court wrote that if an indigent detainee being
interrogated is not informed of his right to appointed counsel, then the right
to counsel “would often be understood as meaning only that he can consult
with a lawyer if he has one or has the funds to obtain one.” Id. at 473. Were
“obtain” to mean “receive all the benefits associated with hiring,” then the
Supreme Court’s distinction between consultation and obtainment would
not make sense. Neither would the following sentence from a detained
person: “I have obtained counsel, and now I would like to meet with her.”
The same is true here. Section 3599 authorizes counsel to obtain
experts that are reasonably necessary for post-conviction representation. In
other words, the statute says that if counsel for an indigent prisoner can find
a reasonably necessary expert, counsel has permission to be compensated for
hiring that expert. The statute does not create an independent enforcement
mechanism for an aggrieved, indigent prisoner to seek a remedy from a
federal court about the scope of the expert services provided to the prisoner
with federal funds. If a state official violates a prisoner’s right to counsel, and
that prisoner’s counsel is being paid for by the federal government instead of
the prisoner himself, then that prisoner must avail himself of the same
recourse as a prisoner who is paying for his own counsel.
B.
Although we have not had occasion to opine on the application of
section 3599 to a case like this, several of our sister circuits have. They are in
uniform agreement that section 3599’s authorization for funding does not
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imply an additional grant of jurisdiction to directly oversee the provision of
counsel and related services. See Baze v. Parker, 632 F.3d 338, 345 (6th Cir.
2011); Leavitt v. Arave, 682 F.3d 1138, 1141 (9th Cir. 2012); see also Rhines v.
Young, 941 F.3d 894, 895 (8th Cir. 2019) (addressing in dicta).
Of the three cases just cited, Baze v. Parker, 632 F.3d 338 (6th Cir.
2011), provides the most detailed and persuasive analysis of the issues. In
that case, a convicted murderer who was sentenced to death exhausted
habeas proceedings and intended to gather information for use in a clemency
application. Id. at 340. He requested permission for his attorneys to speak
with various prison employees and inmates. His request was denied. He
sued, claiming a violation of his constitutional rights. That lawsuit went all
the way to the Kentucky Supreme Court, which affirmed a denial of his claim.
Id. After those proceedings, he moved in federal court for an order allowing
him to conduct his desired interviews, claiming that section 3599 provided
jurisdiction for such a motion. Id. The district court dismissed the motion
for want of jurisdiction. The Sixth Circuit affirmed. Id.
The Sixth Circuit rejected, as we do now, the prisoner’s arguments
that the language of section 3599 extends beyond merely allowing district
courts to determine what services are “reasonably necessary” and then to
provide funds for those services. Id. at 342 (“Such a broad oversight power
is in tension with the longstanding principle that ‘we do not sit as super
appeals courts over state commutation proceedings.’” (citation omitted)).
In addition, the Sixth Circuit explained that to read the statute as
creating enforcement rights would lead to the “implausible” result that:
Congress enacted section 3599, not to level the playing field by
providing indigent death row inmates with the same access to
clemency attorneys available to paying inmates, but to tip the
balance in the other direction by providing indigent death row
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inmates with enforceable rights not available to other death row
inmates.
Id. at 344.
To note this strange imbalance is not to engage in policy analysis of
our own. It merely reveals that Appellant’s arguments about the lack of an
internal enforcement mechanism making section 3599 a nullity are
misplaced, for section 3599 puts indigent prisoners on the same footing as
prisoners who pay for counsel. Whether the legislative creation of that
footing is a wise use of institutional resources is not for us to determine.
The Ninth Circuit denied a similar motion made under section 3599
by a prisoner seeking to obtain forensic testing blood samples so that he could
use them in support of his state clemency petition. Leavitt, 682 F.3d at 1141
(“But, section 3599(f) provides for ‘nothing beyond . . . funding power’ and
doesn’t ‘empower the court to order third-party compliance’ with Leavitt’s
attorneys’ investigations.” (quoting Baze, 632 F.3d at 342–43)).
The Eighth Circuit resolved a case with nearly identical facts to the
instant case, but it did so on other grounds. Rhines v. Young, 941 F.3d 894,
895 (8th Cir. 2019). That case involved a murderer sentenced to death who
exhausted all direct appeals and federal post-conviction proceedings who
sought to meet with mental-health professionals to prepare a state clemency
application. Id. The district court held it had no authority to order South
Dakota prison officials to allow the inmate to meet with the experts.
“Following oral argument, a majority of the panel tentatively concluded that
[it] should affirm the district court.” Id. However, the court dismissed the
appeal on either mootness or exhaustion grounds instead of ruling on the
issue. Id. While not as persuasive as either preceding opinion, it reveals at
least that none of our sister circuits that have considered the issue have
decided that section 3599 provides federal courts with anything beyond the
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power to authorize funding for counsel and reasonably necessary expert
services.
* * *
The docket on which Appellant entered his motion to compel was
associated with a federal habeas petition that was dismissed with prejudice in
July of 2013. And that denial of post-conviction relief came nearly a decade
after Appellant’s murder conviction, which occurred in 2004. Now,
eighteen years later, Appellant makes the bare allegation that receiving
psychological services—specifically while unshackled—would assist with a
clemency application or other litigation.
Intentional delay tactics near execution dates are commonplace
enough that our court has a rule specifically addressing the timing of
challenges to death sentences and/or execution procedures. See 5th Cir. R.
8.10 (“Counsel who seek a certificate of appealability, permission to file a
successive petition, or an appeal from a district court judgment less than 7
days before the scheduled execution must attach to the proposed filing a
detailed explanation stating under oath the reason for the delay.”). Because
Appellant has provided no legitimate justification as to why this appeal is
anything but a delay tactic, the district court would not have abused its
discretion in denying relief even if section 3599 could grant jurisdiction to
make that decision.
* * *
In sum, the district court correctly ruled that it did not have
jurisdiction over Appellant’s motion to compel. We AFFIRM. Appellant’s
motion to stay is therefore DENIED as moot.
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Priscilla Richman, Chief Judge, concurring in the judgment:
Beatty was convicted of capital murder in a Texas state court and
received a sentence of death. His post-conviction appeal and state and
federal habeas applications have been unsuccessful, and he is scheduled to be
executed on November 9, 2022. He has retained experts to evaluate his
mental health.
Beginning in 2021, the Texas Department of Criminal Justice started
allowing an inmate to be unshackled during an expert evaluation only when a
court order has been obtained. 1 Beatty filed a motion in federal district court
to compel his unshackling during expert evaluations. He argued, and
maintains in this court, that the district court had jurisdiction under 18
U.S.C. § 3599. The district court denied the motion, concluding that it
lacked jurisdiction to grant the requested relief.
The pertinent provisions of § 3599 are:
(a)(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;
1
See Respondent’s Amended Unopposed Motion to Compel, Panetti v. Lumpkin,
No. 1:04-cv-00042 (W.D. Tex. June 29, 2022), ECF No. 265 (noting the rule requiring a
court order for unshackling); Petitioner’s Unopposed Emergency Motion to Compel, Ricks
v. Lumpkin, 4:20-cv-01299-O (N.D. Tex. Mar. 4, 2022), ECF No. 25 (same); Respondent’s
Unopposed Motion to Compel, Washington v. Lumpkin, No. 4:07-cv-721 (S.D. Tex. Feb.
15, 2022), ECF No. 226 (same).
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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).
...
(e) Unless replaced by similarly qualified counsel upon
the attorney’s own motion or upon motion of the defendant,
each 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.
(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,
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communication, or request shall be transcribed and made a part
of the record available for appellate review.
Even assuming a federal court had authority to act at some point to
require a state actor to unshackle a prisoner during an expert evaluation (an
issue on which I presently take no position), § 3599 does not indicate that it
creates original jurisdiction in the federal courts to decide issues such as the
terms of access to a prisoner. Suppose that a federal court authorizes funds
for an expert to prepare testimony and a report to be presented to a state
pardons and parole commission, but a state rule excludes that evidence,
categorically, for some reason. Could the prisoner go directly to federal court
and argue that the state rule should be ignored and that a federal court should
order the pardons and parole commission to consider the testimony and
expert report? The argument would be that § 3599 contemplates funds for
competent and effective expert services, and if a state rule forecloses
presentation of the expert’s findings, there has been no effective right to the
services of an expert. But even giving § 3599 a very generous reading, it does
not authorize original proceedings in federal court to override or bypass a
state rule altogether in the first instance.
There is no indication that Beatty sought any relief in state court. It
does not appear that he brought a motion in state court to compel unshackling
nor has he challenged in state court the application of the shackling rule either
facially or as applied to him. Because no state court has had the opportunity
to consider evidence as to why the state could or could not reasonably require
Beatty to be shackled, I would not reach the question of whether § 3599
would authorize a federal court in an original proceeding to compel a state
actor to unshackle a prisoner. I therefore concur in the judgment dismissing
this appeal.
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