IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

QUINTIN PHILLIPPE JONES, §

Petitioner, §

 §

V. § CIVIL ACTION NO. 4:05-CV-638-Y

 §

WILLIAM STEPHENS, Director, §

Texas Department of Criminal § (death-penalty case)

Justice, Correctional §

Institutions Division, § 

Respondent. §

OPINION AND ORDER DENYING LEAVE TO PROCEED EX PARTE

ON FUNDING APPLICATION

(with instructions to the clerk)

On May 23, 2014, Quintin Phillippe Jones filed a Motion for Leave

to Proceed Ex parte on his Opposed First Application for Funding [doc.

121]. The motion reflects that Respondent opposes it.1 Jones seeks

funds “for mitigation investigative services to assist him in the

preparation of . . . an ineffective-assistance-of-counsel Wiggins

claim” for his amended habeas petition in this death-penalty case. 

The issue before the Court is whether Jones may proceed ex parte on

the application for funds. 

Discussion

The relevant statute provides that when counsel seek funds for

investigative services, “No ex parte proceeding, communication, or

request may be considered pursuant to this section unless a proper

1

 The Court has not waited for Respondent to file a written response

before ruling on Jones’s motion, as the due date for Jones’s amended

petition draws near. If, for some reason, Respondent contends the denial

of the motion prejudices him in some way, then Respondent may file a

motion requesting reconsideration of this order.

 

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showing is made concerning the need for confidentiality.” 18 U.S.C.

§ 3599(f); Gary v. Georgia Diagnostic Prison, 686 F.3d 1261, 1262

n.1 (11th Cir. 2012) (stating that § 3599 addresses both persons under

indictment in federal court and state prisoners under a death sentence

who petition for a federal writ of habeas corpus). This provision

changed the ex-parte process provided by the former statute to a

process that is not to be held ex parte unless the proper showing

is made. See Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997). 

The current statute has been interpreted to require a petitioner

seeking expense authorization ex parte to include a “short

case-specific statement of the need for confidentiality.” See Patrick

v. Johnson, 37 F. Supp. 2d 815, 816 (N.D. Tex. 1999)(quoting Dowthitt

v. Johnson, No. H-98-3282, 1998 WL 1986954 (S.D. Tex. Dec. 2, 1998)

(not designated for publication and adopting Mitcham v. Calderon,

No. C-94-2854, 1996 WL 33322268 (N.D. Cal Dec. 20, 1996) (not

designated for publication)); see also Shields v. Johnson, 48 F. Supp.

2d 719 (S.D. Tex. 1999) (Kent, J.). Quoting Dowthitt which

incorporated Mitcham, Patrick held that such a 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.” Patrick, 37 F. Supp. 2d at 816.

The opinion in Patrick is not binding on the Court and, as Jones

acknowledges, has been rejected by a judge of this Court and by other

courts. See, e.g., Threadgill v. Thaler, No. 3:05-CV-2217-D, slip

2

 

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op. at 2 n.2, 2012 U.S. Dist. LEXIS 188386 (N.D. Tex., Oct. 11,

2012)(Fitzwater, C.J.); see also Ruiz v. Thaler, No. SA-03-CA-303-OG,

slip op. at 2 (W.D. Tex., Aug. 31, 2011) (Garcia, J.). The

superficial Mitcham standard does not address confidentiality concerns

and conflicts with the presumption in section 3599(f) that a

petitioner’s request for public funds be made in the regular, public

course of court business. Funding motions, in the Court’s experience,

have a significant potential for abuse when Respondent is denied the

opportunity to address the accuracy of the assertions supporting them.

Accord Crawford v. Washington, 541 U.S. 36, 49 (2004) (recognizing

in historical account of cross-examination practices that ex-parte

evidence “very seldom leads to the proper discovery of truth.”). 

How, exactly, a petitioner can explain the need to proceed ex

parte without disclosing the very information he claims a need to

keep secret may be unclear, but it is not impossible. See Haight

v. Parker, No. 3:02-CV-206-S, 2010 WL 1489979, at *9 (W.D. Ky. Apr.

13, 2010); Shields, 48 F. Supp. 2d at 720. One judge has observed

that all of prior counsel’s relevant communications and work product

is laid bare during the course of litigating an ineffective-assistance

claim, that no privilege would protect information already known to

the respondent (not an immaterial consideration in habeas proceedings,

which begin after state litigation has ended), and that a habeas

petitioner (who challenges his presumptively valid state conviction)

may have a lesser interest than a criminal defendant has in protecting

3

 

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the identity of his witnesses. Robertson v. Stephens, No. 3:13-CV728-G, 2013 WL 2658441, at *3 (N.D. Tex. June 13, 2013) (Fish, Sr.

J.).

Despite Jones’s tacit acknowledgment of these cases,2 his motion

identifies only the type of services needed and the broad issue he

seeks to raise. He then asserts, “The Application should be sealed

and heard ex parte because, as the Court’s en camera review of it

will reflect, it discusses counsel’s assessment of representation

needs to justify the funding request and such assessment constitutes

confidential work product.” Motion at 4. Essentially, Jones asserts

that his very argument justifying the funding request is a privileged

matter. This showing fails to satisfy even the lesser standard in

Patrick because it is not a case-specific need, but “only a generic

need for confidentiality which arises in virtually all capital cases.” 

See Patrick, 37 F. Supp. 2d at 816; see also Graves v. Johnson, 101

F. Supp. 2d 496, 499 (S.D. Tex. 2000); Shields, 48 F. Supp. 2d at

720. If such an assertion satisfies section 3599, the confidentiality

provisions in the statute would be rendered a nullity. 

Instructions

The motion for leave is DENIED [doc. 121]. The Clerk is

instructed to UNFILE Jones’s sealed Opposed First Application for

Funding [doc. 122]. Jones may refile the motion for leave to address

2 In fact, lead counsel in this case is the appointed counsel in

Robertson.

4

 

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a specific need for confidentiality or he may file a funding

application in the regular, public course of court business. 

SIGNED May 30, 2014.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

TRM/ks:bb

5

 

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