1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT WAYNE HARRIS,

Petitioner,

v. Case No. 3:05-CV-243

RICK THALER, Director

Texas Department of Criminal Justice

Institutional Division

Respondent.

OPPOSED

MOTION TO PERMIT 

EX PARTE SEALED CONSIDERATION OF APPLICATION 

FOR AUTHORIZATION FOR

FUNDING AND APPOINTMENT OF MITIGATION INVESTIGATOR

In this motion, Petitioner Robert Wayne Harris asks this Court, pursuant to 18 U.S.C. §

3599(f) and McFarland v. Scott, 512 U.S. 849 (1994), to authorize and to treat ex parte and place

under seal his Application for Authorization for Funding and Appointment of Mitigation

Investigator, to assist counsel in preparing for the clemency proceeding before the Texas Board of

Pardons and Paroles. Formerly, such applications were routinely heard ex parte in federal habeas

proceedings. The Antiterrorism and Effective Death Penalty Act of 1996 revised the federal

appointment statutes to require a proper showing of the need for confidentiality in investigative

requests in federal habeas proceedings.18 U.S.C. § 3599(f). 

Case 3:05-cv-00243-N Document 122 Filed 07/16/12 Page 1 of 5 PageID 1287
2

In an order entered in the case of Patrick v. Johnson, 37 F. Supp. 2d 815 (N.D. Tex. 1999),

Magistrate Kaplan quoted from Dowthitt v. Johnson, No. H-98-3282 (S.D. Tex. December 2, 1998)

in which the court set out a procedure for the filing of an ex parte submission of a request for

investigative and expert assistance:

The district judge in Dowthitt required a petitioner seeking expense authorization to:

file and serve a brief motion seeking generally authorization for investigative or

expert expenses, [including] a short case-specific statement of the need for

confidentiality. The statement of need for confidentiality merely must identify

generically the type of services needed and the broad issue or topic (e.g. innocence)

for which the services are necessary. Simultaneously, the petitioner must file ex

parte and under seal his detailed application for authorization for the investigator or

expert, and must estimate the amount of fees or expenses likely to be incurred. The

petitioner must provide factual support for the funding request. The motion, but not

the application with supporting materials, must be served on the respondent.

Magistrate Kaplan’s procedure has been favorably followed by other district courts. See also

Patrick v. Johnson, 37 F. Supp. 2d 815 (N.D. Tex. 1999); Graves v. Johnson, 101 F. Supp. 2d 496

(S.D. Tex. 2000). 

However, some district judges require that the Petitioner do more than “identify generically

the type of services needed and the broad issue or topic ... for which the services are necessary

because this would neither demonstrate a need for confidentiality nor explain why the funding

request could not be made publicly, as § 3599(f) contemplates. To that end, Mr. Harris will

demonstrate below the need for confidentiality.

Case 3:05-cv-00243-N Document 122 Filed 07/16/12 Page 2 of 5 PageID 1288
3

I. Statement of Need for Confidentiality: Type of Service and Topic.

The Petitioner seeks funding for mitigation investigative services to assist him in his

preparation and presentation of his clemency petition to be presented to the Texas Board of Pardons

and Paroles on or before August 30, 2012. 

 Although somemitigation investigative services had been provided pre-trial, a review of the

trial court record indicates an inadequate mitigation investigation had been performed. As a result,

the jury was provided onlya minimal mitigation presentation during the sentencing phase of the trial.

Likewise, the thrust of the mitigation investigation for Atkins purposes was aimed at making the

requisite showing that Mr. Harris was mentally retarded. 

Petitioner seeks funding for mitigation services that extends beyond the narrow scope of the

investigative services developed pre-trial, and that had been directed at proving the three prongs of

this Atkins claim. The Application should be sealed and heard ex parte because its discusses prior

and proposed work product to justify the funding request. To further detail his funding request in

this motion would require Petitioner to reveal work product or privileged information to adequately

justify funding requests under 18 U.S.C. § 3599(f).

II. Conclusion.

Petitioner has satisfied the requirement of 18 U.S.C. § 3599(f), in particular, complying with

the procedure used in the Northern District of Texas by identifying generically the type of service

needed and justifies that the services are necessary. Compelling principles of fairness and

constitutionality support his request. Accordingly, Mr. Harris request that this Court authorize him

to file and consider ex parte and under seal, Petitioner’s Application for investigative assistance, and

Case 3:05-cv-00243-N Document 122 Filed 07/16/12 Page 3 of 5 PageID 1289
4

any supplemental requests under 18 U.S.C. § 3599(f). 

Respectfully submitted,

____________________________________

Lydia M.V. Brandt, Esq.

THE BRANDT LAW FIRM, P.C.

Texas Bar No. 00795262

P.O. Box 850843

Richardson, Texas 75085-0843

(972) 699-7020 Voice; (972) 699-7030 Fax

CERTIFICATE OF CONFERENCE

I hereby certify that on July 16, 2012, I communicated with counsel for the Respondent, Ms.

Georgette P. Oden, Assistant Attorney General. Respondent is opposed.

________________________________

Lydia M.V. Brandt

CERTIFICATE OF SERVICE

This certifies that on July 16, 2012, I electronically filed the foregoing document with the

clerk of court for the US District Court Northern District Texas using the electronic case filing

system of the court. The electronic case filing system sent a notice of electronic filing to the

following attorney of record, who has consented in writing to accept this notice as service of this

Case 3:05-cv-00243-N Document 122 Filed 07/16/12 Page 4 of 5 PageID 1290
5

document by electronic means:

Georgette P. Oden, Assistant Attorney General

georgette.oden@oag.state.tx.us

Attorney General’s Office

P.O. Box 12548, Capitol Station

Austin, TX 78711-2548

________________________________

Lydia M.V. Brandt

cc: Robert Wayne Harris, #999-364

Polunsky Unit

Texas Department of Criminal Justice

3872 FM 350 South

Livingston, TX 77351-8580

Case 3:05-cv-00243-N Document 122 Filed 07/16/12 Page 5 of 5 PageID 1291