### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-70014

BILLY JACK CRUTSINGER, Petitioner–Appellant
v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent–Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 4:07-CV-703

Before DAVIS, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Petitioner–Appellant Billy Jack C r u tsinger was convicted of capital

m u r d e r and s entenced to d eath in Tarrant County, Texas. Crutsinger now requests a certificate o f a p p e al ab ility (“COA”) to appeal the district court’s denial of his petition for federal habeas relief. F or the following reasons, his request for a COA is DENIED. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Septem ber 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-70014 Document: 00512377509 Page: 1 Date Filed: 09/18/2013No. 12-70014 Background On April 6, 2003, Crutsinger f a tally stabbed eighty-nine-year-old Pearl Magouirk and her seventy-one-year-old daughter, Patricia Syren. A Texas jury convicted him of c apital m u rder, and, based o n the jury’s answers to the special issues i n the court’s charge, the trial judge s entenced h i m t o death. The Texas C o u r t of Criminal Appeals (“TCCA”) affirmed the c onviction and sentence o n direct appeal, and the U.S. Supreme Court denied Crutsinger’s petition for writ of certiorari. Crutsinger v. State , 206 S.W.3d 607, 608 (Tex. Crim. App. 2006), cert. denied , 549 U.S. 1098 (2006). While his d i r e c t a ppeal was p ending, Crutsinger filed a s tate habeas
corpus application, r aising e ighteen claims for r elief. On November 7, 2005, the state trial judge issued findings of fact and conclusions o f law reco m m e n d ing that r elief be denied. Two years later, the T CCA a d o p t e d the trial judge’s findings and conclusions and denied relief. Ex parte Crutsinger , No. WR-63,481- 01, 2007 WL 3277524, at *1 (Tex. Crim. App. N o v. 7, 2007). Crut s i n g e r t h en sought federal habeas relief, and new counsel was a ppointed to represent him in federal court. On May 8, 2008, before filing his federal habeas petition, Crutsin g er sought funding for investigative and expert a ssistance i n the development of his claim that his trial c ounse l w a s i n e ffective in failing to timely initiate a social history investigation. The district court determined, h owever, that this specific i n e f f e c t i v e - a ssistance-of-counsel ( “ IA C ” ) c l a i m w a s u n e x h a u s t e d a n d procedurally barred from review. Crutsinger attempted to establish an exception to the exhaustion requirement under 28 U.S.C. § 2254(b)(1)(B)(ii) by arguing that circumstances existed that rende r e d t h e s t ate corrective process ineffective to protect his rights. Specifically , C rut s in ge r cl ai m e d that “during the time that his s tate habeas application was p ending, the g eneral ineffectiveness of state habeas cou n sel a ppointed throughout Texas rendered the entire state

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habeas process ineffective to protect the rights of d eath-row habeas p etitioners.” The court rejected this “innovative and f ar-reaching construction of th[e] statutory exception” and instead denied the pre-petition funding r equest based

on “an abundance of case law establishing that th e ineffective assistance of state habeas counsel cannot justify a f a i l ure t o c omply w ith th e exhaustion requirement or excuse any resulting procedural default.” Crutsinger then filed a habeas petition u n d e r 28 U.S.C. § 2254, alleging three grounds for relief, i ncluding the IAC claim for which he h a d p r eviously sought f unding. C rutsinger al l e g ed that (1) the trial court failed to suppress evidence resulting from h is illegal arrest in violation of the Fourth Amendment, (2) his trial counsel provided ineffective assistance in failing to timely initiate a social history investigation, which c a used counsel to overlook e vidence of his mental impairments caused by alcohol addiction, head trauma, depression, and low intelligence, and ( 3) actual innocence

. Af t er determining that S tone v. Powell , 4 28 U.S. 465, 494 (1976), b a rred consideration of Crutsinger’s Fourth Amendment claim, the court addressed the IAC claim. Though the court h ad found that the substance of the IAC claim was not developed in state court, the Government did not assert a procedural bar based

on the failure to exhaust and instead argued the m erits of the claim. Under these circumstances, the court declined to apply a procedural bar sua sponte and instead reviewed the claim de novo becaus e “ t h e record contain[ed] sufficient fact s t o make an informed decision on the merits.” The court determined that Crutsinger w as unable to show either that his counsel’s performance fell below an objective standard of reasonableness or that he was prejudiced by counsel’s deficient performance. See Strickland v. Washington , 466 U.S. 6 68, 6 94 (1984). As a resu l t , t he court rejected Crutsinger’s IAC claim, and, finding that his actual innocence claim also lacked merit, denied his habeas petition and denied the COA.

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Shortly th ereafter, Crutsinger moved to alter the judgment under Federal R u le of Civil Procedure 59(e). After the district court denied that motion , Crutsinger initiated the present proceeding, requesting that this Court issue a COA. Discussion Under the Antiterrorism and E ffective Death Penalty Ac t of 1996, petitioners may not appeal the denial of habeas relief without securing a COA. 2 8 U.S.C. § 2 253(c)(1); Miller–El v. Cockrell , 537 U.S. 322, 335–36 (2003)

. T o obtain a COA, the petitioner must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). “A p etitioner s a t i s f i e s this standard by d emonstrating that jurists of r eason c ould disagree w ith the district court’s resolution of his c onstitutional claims or that j urists could conclude the issues presented are adequate to deserve encourag e m e n t t o proceed further.” Miller–El , 537 U.S. at 327. On review, w e must issue a C O A if “reasonable jurists w ould find the district court’s assessment o f the constitutional claims debatable or w r ong.” I d. at 338. “ [A] claim can be debatable even though every jurist of reason might

a gr ee, after the C OA has been granted and the case has received f u l l consideration, that petitioner will not prevail.” Id. “This threshold i nquiry does not r equire f

ull consideration of the factual o r legal bases adduced in support of the claims.” Id. at 3 36. It requires only “an overview of the claims in the habeas petition and a general a ssessment of their merits.” Id. F o r death penalty cases, “any doubts as to whether the COA should i s sue are resolved in favor of the petitioner.” Moore v. Quarterman , 534 F.3d 454, 460 (5th Cir. 2008). Crutsinger reque s t s a COA for his claim that his trial counsel p rovided ineffective assistance by failing to adequately investigate and develop evidence in all phases o f the trial. Although Crutsinger p r e s e n t ed an IAC claim in the stat e h ab e a s p roceeding based on trial c ounsels’ alleged failure t o investigate

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generally, the district court d etermined that the f ederal iteration of Crutsinger’s IAC claim—one concerned with the timing of the investigation r ather than the general failure to adequately cond u c t one—had not been d e veloped in state court. The court nevertheless reviewed the claim de novo, declining to raise the procedural ba r s u a sponte

. Our review, therefore, i s limited t o whether reasonable jurists w o u l d find debatable or w rong the district court’s determination of Crutsinger’s IAC claim. A. IAC Claim “The Sixth Amendment provides for the right to counsel, and the S upreme Court has recognized that ‘the right to counsel is the right to effective assistance

o f c o u nsel.’” N

eville v . Dretke , 423 F.3d 474, 482 (5th Cir. 2 005) ( qu o t i n g Strickland v. Washington , 4 6 6 U.S. 6 68, 686 (1984)). To establish a denial of that right, the petitioner must demonstrate ( 1) that counsel’s performance “fell b e l o w an objective standard of reasonableness,” a nd (2) that the deficie n t performance p rejudiced the p etitioner’s case. Strickland , 466 U

. S

. at 688–92. Failure to satisfy either prong is fatal to an IAC claim. In evaluating Strickland’s first prong, counsel’s p e rformance is measured aga i n s t an objective s tandard of reasonableness u nder prevailing professional

norms. Rompilla v. Beard , 545 U.S. 374, 380 (2005). Becaus e t h e r e a re countless ways to p rovide effective assistance, the petitioner must overcome “a strong presumption th a t c o unsel’s conduct f alls w ithin the wide range of

reas o n able professional assistance.” Strickland , 466 U.S. at 689. “In judging the defense’s investigation, a s in applying Strickland generally, hindsight is discounted by pegging adeq u a c y t o counsel’s perspective at the time investigative decisions are made and by giving a heavy measure of d eference to counsel’s judgments.” Ro mpilla , 545 U.S. at 381 (internal quotation marks and citations omitted).

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During the underlying criminal proceedings, the t rial court a ppointed, on counsel’s motion, a forensic psychologist, Dr. Kelly Goodness, as a m itigation specialist to investigate Crutsinger’s social history. In their affidavit to the state h abeas c o urt, Crutsinger’s trial counsel exp l ai n e d th at D r . G o o dn e s s ’ s ev alu ati o n would not have benefited Crutsinger at p u nishment and th a t t h e u s e of her report would have allowed the State t o p resent e vidence based o n i ts own expert’s evaluation. The district cou r t determined that both this d ecision and the und e rlyi n g i nv e s ti g ati o n i nt o C rut s i n ge r’s s ocial history were reasonable and that, even if counsel’s performance had b een deficient, Crutsi n g e r failed to establish that the performance prejudiced his case. Rather than challenge the substance of th e district c ourt’s determination, Crutsinger n ow, as i n his motion to alter the judgment, argues that the district

c o u r t m isconstrued his IAC claim and denied relief o n a weaker claim that he

n e v e r a s s e rted. Specifically, he claims that his argument is that t rial counsel should have investigated further into his m ental h ealth based on the “red flags”

r ai s e d in Dr. Goodness’s report—not that trial counsel should have p r e s e nt e d D r . Goodness’s testimony at trial. He claims that only “after further investigation and sufficient development of evidence o f b r a in impairment, and the psychosocial history of Mr. Crutsinger, could counsel then make a n informed decision on whether to present such evidence or not.” Despite Crutsinger’s c laim t o th e contrary, the district court addressed the

a r g u m e n t s that he raised i n his habeas petition. The essence of Crutsinger’ s IAC claim was that trial counsel failed to timely investigate Crutsinger’s social h i s t o r y and, b ecause the i nvestigation w as conducted too late, trial counsel lacked sufficient information to develop a viable strategy . For e xample, Crutsinger argued that a timely investigation would have revealed that one of the critical themes running throughout th e case was his alcohol add i ction,

which , t o ge th e r with s c i entific information about the disease of alcohol addic ti o n , 6 Case: 12-70014 Document: 00512377509 Page: 6 Date Filed: 09/18/2013No. 12-70014

would have provided a b asis for trial counsel to (1) assert that Crutsinger’s confession was nonvoluntary, (2) negate m e n s rea , and ( 3) o ffer a credible
response to the prosecution’s assertion that Crutsinger w a s “ e vil.” S imilarly, Crutsinger argued th at Dr. Goodness’s report revealed that h e h ad several mental impairments and had suffered prior head trauma, bo t h o f w h i ch were factors that, had they been discovered earlier, could h ave been used t o undercut the voluntariness of his confession and his criminal responsibility. The district court r ejected these specific arguments. F i r s t , the court determined that the i nves t i g a t i o n was timely and a dequate. The court found that Crutsinger’s assumption t h a t t r ial c ounsel did n ot consult D r. Goodness until the day she issued her written report was contradicted by Dr. Goodness’s indication that she would first make an oral report to trial counsel and prepare

a written repor t only if requested. Additionally, the court found that even if C rutsinger c ould show that trial counsel m ade strategic decisions with o u t t h e benefit of Dr. G oodness’s investigat i o n , he still could not establish prejudice. The c ourt found n o evidence, e ither in the record or in the materials Crutsinger submitted with his habeas petition , t o support any o f the defenses Crutsinger claimed he could have asserted. It is only now in his application for a COA that Crutsinger asserts that his true argument was that trial counsel should h a v e investigated further upon learning of certain “red flags” in D r. Goodness’s r e port. But e ven if this were the

a r g ument he presented in his habeas petition, the district court’s r eas o n i n g encompasses it. The critical issue in both of Crutsinger’s arguments is whether the investigation was reasonable, and the district court d e termined that it was. As the district court noted, Counsel here hired a f

orensic psychologist who, with the assistance of a social w orker and psychological associat e , conducted a mitigation investigation that is documented in a twenty-three page report. That report i s sup p o rted b y interviews with Petitioner’s

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friends a nd family, document review summaries, a criminal history, fourteen hours of c l i n i c al interviews with Petitioner, and th e administration of nineteen different psychological instruments.
We find no reason t o d i s p ute the district c o urt’s d e termination that this investigation was r easonable. Indeed, Crutsinger himself d oes not challenge the thoroughness of Dr. Goodness’s r eport, relying instead on the red flags within it that should have alerted trial counsel of the need for further testing. Counsels’ decision to terminate the investigation, however, was m ade after a t h orough investigation by Dr. Goodness, and “strategic choices m ade after thorough investigation o f law a nd facts relevant to p lausible options are virtually

u n c h a l l e n g eable.” S trickland , 466 U.S. at 690; see also Wiggins v . Smith , 53 9 U.S. 510, 533 (2003) (“ Strickland does not require counsel to investigate every conceivable line of mitigating evidence no m atter how u nlikely the effort would be to assist the defendant at sentencing.”). We f ind that the evidence supports the district court’s d etermination that

counse l conducted a thorough investigation. Based on that investigation, counsel made the strategic decision not to present Dr. Goodness’s testimony and not to pursue further investigation. Th o u gh C r u tsinger now challenges the failure to pursue further investigation, he has n ot explained what the additional investigation he requests would reveal n or h ow it would have changed the result of his trial and sentence. Consequently, Crutsinger has failed to cast doubt on the district court’s conclusion that “[c]ounsels’ investigation in this case was not deficient, b ut was guided by sufficient inform a tion upon which a reasonable strategic decision c o u l d be made.” Under these circumstances, fairminded jurists c ould not disagree with the district court’s determination of Crutsinger’s IAC claim. We therefore deny Crutsinger’s application for a COA.

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B. Denial of Funding Under 18 U.S.C. § 3599 Crutsinger next challen g e s the district court’s decision to deny him funding for investi g a t i v e a nd expert assistance in the development of his IAC claim. Crutsinger’s r equest for funding is governed by 18 U.S.C. § 3599. Though Crutsinger challenges the district court’s funding decision in his application, a COA “is not n ecessary to appeal the denial o f f u n d s for expert assistance.” Smith v. Dretke , 422 F.3d 269, 288 (5th Cir. 2005). Instead, funding orders are reviewed for abuse of discretion. Id. Section 3599 p rovides that a district court may authorize a defendant’s attorneys to obtain investigat i v e , expert, or other services u pon a f inding that such services “are r easo n ably necessary for the representation of the defendant.” 18 U.S. C

. § 3 5 9 9(f). 1 If the court finds that such s ervices are reasonably
necessary, it “shall order the payment of fees and e x p e n s e s therefor.” I d. Reasonably necessary in thi s c o nt ext means “that a petitioner must demonstrate ‘a substantial need’ f

or the requested assistance.” Riley v. Dretke , 362 F .3d 302, 307 (5th Cir. 2004) (quoting Clark v. Johnson , 202 F.3d 760, 768 (5th Cir. 2000)). “A p e t i t i o ner cannot show a substantial need when his c laim is procedurally barred from review.” Id. Similarly, the d enial o f funding will be upheld when it would only support a meritless claim o r when it would o nly supplement prior evidence. Woodward v. Epps , 580 F.3d 318, 334 (5th Cir. 2009). The district court d en i e d Crutsinger’s requested f unding because Crutsinger could not show at the time of his r equest that the c l aim sought to be investigated was not procedurally barred from review. Crutsinger first argues that this denial was improper because the justification behind it—that the claim sought t o be investigated was procedurally barred—is i r r e concilable with the court’s later d ecision t o address the merits of his claim. In other words,

1 The s tatute als o requires a s how ing of ind igence, an is s ue not in d is p ute here. 9 Case: 12-70014 Document: 00512377509 Page: 9 Date Filed: 09/18/2013No. 12-70014

Crutsinger argues t h a t i t was improper for the district court t o deny funding based on a procedural bar only to later reach the merits of the claim, which had to be presented wit h out the benefit of the requested investigative funds. We disagree. The district court’s d ecision to address the m erits of t h e c l a i m does not establish an abuse of discretion for its prior funding decision. The court relied

on our w ell-established rule in denying funding to i nvestigate a c l aim that would be procedurally barred from review. See Riley , 362 F.3d at 3 07. It was only after Crutsinger applied for habeas r elief and the State did not s eek to apply the procedural bar that the court decided to r e ach the merits. The dec i sion not to apply the procedural bar s u a s p o nte was w ithin the district court’s discretion. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas c orpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); M a gouirk v. Phillips , 144 F.3d 348, 360 (5th Cir. 1998) (“We conclude that a federal district c o urt may, in the exercise of its judicial discretion, raise procedural d efault sua sponte.”). That decision, however, does nothing to undercut the justificatio n f o r the i nitial denial of funds—the claim the court reviewed was still unexhausted. See 28 U.S.C. § 2254(b)(3) (“A State s hall not be deemed to have waived the ex h a u s t i o n requirement o r be estopped from r e li anc e u p o n th e r e quirement unless the State, through counsel, expressly waives the requirement.”). Additionally, the court even implied that it w as unnecessary to r evisit its prior funding decision when it determined that “the record contain[ed] sufficient facts to make an informed decision on the m erits.” Crutsinger has presented no argument to c ontradict this p oint and does not argue that his IAC claim was in fact exhausted. H e simply asserts that “[h]ad th e funding request been granted, the p e tition would have been resolved in a different manner than it was.” This

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conclusory statement is insufficient to establish that the district court abused its discretion in denying Crutsinger’s funding request. Crutsinger next argues that the di s trict court’s decision t o d eny funding

was a n u nreasonable application of Martinez v. R yan , 132 S. Ct. 1309 (2012). In Martinez , the Supreme Court held, Where, under state l a w , c l a i ms o f ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court f rom hearing a substantial c laim of ineffective assistance at trial if, in the initialreview c ollateral proceeding, there was no c ounsel or counsel in that proceeding was ineffective.
132 S. C t. at 1320. 2 Crutsinger argues that after Martinez , the di strict court’s justification for the d enial of funds—th a t the ineffective a ssistance of state habeas counsel could not excuse any procedural d e fault—is no l o nger correct. Martinez , however, was decided in 2012—four years after the district court d enied Crutsinger’s funding request. As we have previously r ecognized, Martinez d i d not establish a new rule of c onstitutional law to be applied retroactively. See Adams v . Thaler , 6 7 9 F.3d 312, 322 n.6 (5th Cir. 2012) (noting that the M

artinez decision was an “equitable ruling”). A s s uch, it has no bearing on the district court’s decision to deny funding. In any e vent, even if Martinez applied to Crutsinger’s funding r equest, he has failed t o establish, o r e ven attempt to establish, e ither that his state habeas counsel was ineffective or that his underlyi n g IAC claim i s “ substantial,” both

o f which are required u nder Martinez

. Instead, he argues that M a r t i n ez “obligated the district court to provide pre-petition funding” because it “tacitly

2 This rule ap p lies in Texas , even though Texas d oes not p reclud e IAC claim s on d irect ap p e a l , b e c a us e “the Texas p roced ural sys tem

— as a m atter of its s tructure, d es ign, and op eration— does not of f er m os t d ef

end ants a m e a n i ngf

ul op p ortunity to p res ent a claim of inef f ective as s is tance of trial couns el on d i r e c t ap p eal. ” Trev ino v . Tha ler , 133 S. Ct. 1911, 1921 ( 2013)

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acknowledges that litigating IA C c l a ims requires not merely an effective

a t torney, but also one that had adequate resources to demonstrate the underlying claim is a substantial one in order to o vercome procedural default.” Martinez , however, d oes not m andate pre-petition funding, n or does it alter our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from review. It provides only that “[i]nadequate assistance of counsel at initial-re v i e w c ollateral proceedings may establish cause for a prisoner’s procedural d efault of a claim of ineffective assistan c e a t t rial.” Martinez , 132 S

. Ct. at 13 1 5

. Wi t h out both a showing under Strickland that state habeas counsel was ineff e c t i v e and a demonstration that the underlying IAC claim “has some merit,” id. at 1318, Martinez o ff e rs no relief from a potential procedural d efault. Because Crutsinger has failed to show either, any relief provided by Martinez would be unavailable to him. Conclusion For the f

oregoing rea s o n s, we AFFIRM the district court’s denial of Crutsinger’s request for investigative funds. Additionally, because reasonable jurists c ould not disagree with the district court’s determination of Crutsinger’s IAC claim, Crutsinger’s request for a COA is DENIED.

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