## United States Court of Appeals **For the Eighth Circuit**

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No. 22

- 3175

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Michael A. Tisius

Petitioner - Appellee

v.
David Vandergriff, Warden

Respondent - Appellant

____________ Appeal from United States District Court for the Western District of Missouri - Kansas City

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Submitted: November 3, 2022 Filed: December 19, 2022

____________ Before SHEPHERD, ERICKSON, and STRAS, C ircuit Judges.

____________ ERICKSON, Circuit Judge.

M ichael Tisius was sentenced to death in 20 01 for killing Sheriff’s Deputies Jason Acton and Leon Egley during an attempted jail break

. The State of Missouri will soon schedule Tisius’s execution, a s he has exhausted state and federal review of his convictions. See Tisius v. Blair , No. 21

- 1682, 2021 WL 9528147 (8th Cir. Nov. 9, 2021) ; Tisius v. Blair, No. 21

- 8153, 2022 WL 4653572 at *1 (Oct. 3, 2022).-2- In early August 2022, appointed counsel , consistent with 18 U.S.C. § 3599, submitted a post

- habeas budget for court approval. Two weeks later, on August 17, 2022, Tisius filed an ex parte sealed motion for an order directing the Warden to facilitate or transport Tisi u s to the hospital f or medical testing in furtherance of his state clemency case. Tisius asserted that even though he was not requesting any funding for the testing or transportation expenses, the district court was vested with authority under 18 U.S.C. § 3599 to grant his request because § 3599 authorizes federally appointed counsel to represent defendants in state clemency proceedings and post

- habeas counsel is obligated to zealously represent clients i n the same

manner as habeas counsel. About a month later, Tisius , relyi ng on the same authority, filed an other ex parte sealed motion in preparation for his clemency

case

— this time requesting that the court authorize a doctor to conduct bone

- lead level testing on Tisius, either in a private room in the prison or at another se cure location of the prison’s choosing. The next day the district court granted the ex parte motion for bone

- lead level testing. A few days later, the district court entered an ex parte sealed order directing the Warden and Missouri Department of Correct ions to transport Tisius to the hospital on October 24, 2022, at 6:00 a .m. for medical testing.

T h e State moved the district court to vacate and stay its orders
, but before the district court ruled on the motions, the State appealed to this court and we granted a stay of the district court proceedings and expedited the state’s appeal of the ex parte order s

. “ We review questions of subject

- matter jurisdiction de novo ” Cross v. Fox
, 23 F.4th 797, 800 (8th Cir. 2022) ( quotation omitted) , “[a] nd whether 18 U.S.C. § 3599 grants district courts jurisdiction to compel state officials to act is a question of subject

- matter jurisdiction.” Beatty v. Lumpkin
, 52 F. 4th 632, 634 (5th Cir. 2022) (cit ing Ayestas v. Davis
, 584 U.S.

–– , 138 S. Ct. 1080, 1088

– 92 (2018) (holding that section 3599 grants courts judicial, not administrative, power) , and Lujan v. Defs. of Wildlife , 504 U.S. 555, 559 (1992) (explaining that the extent of the federal judicial power is a jurisdictional question) ).

Af ter careful review of the briefs and the parties’ argument s , w e conclude that 18 U.S.C. § 3599 does not permit the district court to compel state officials to act in furtherance of state clemency proceedin gs

. While the Supreme Court has recognized-3- that § 3 599 authorizes federally appointed counsel to represent a death penalty defendant in related state court clemency proceedings, Harbison v. Bell , 556 U.S. 180, 193 (2009), nothing in the statute or the dev eloped case law supports Tisius’s claim that § 3599 gives the district court authority to provide the relief he requested. A majority of the panel in Rhines v. Young , 941 F.3d 894, 895 (8th Cir. 2019), tentatively concluded that we should affirm a district court’s conclusion that it lacked authority under 18 U.S.C. § 3599 and the All Writs Act, 2 8 U.S.C. § 1651(a), to order South Dakota prison officials to allow an inmate sentenced to death to meet with experts retained by appointed counsel for the purposes of preparing a clemency application. Because of subsequent developments, we concluded a decision o n this issue was no longer necessary and found the issues on appe al moot or unexhausted. Id. at 895

- 96. We now join the other circuits that have held § 3599 is a funding
statute, not a mechanism that grants federal courts authority to oversee and compel state officials to act in furtherance of clemency proceedings. S ee Beatty v. Lumpkin
, 52 F. 4th at 634

– 35 ( noting § 3599 does not allow a district court to “oversee the implementation of ‘reasonably necessary’ services by ordering state officials to comply with prisoners’ requests related to such services”) ; Bowles v. D eSantis , 934 F.3d 1230, 1242

– 44 (11th Cir. 2019) ( explaining there is no federal constitutional right to state clemency and federal judges have no general supervisory power over state officials except when necessary to assure compliance with the United Sta tes Constitution) ; Leavitt v. Arave, 682 F.3d 1138, 1141 (9th Cir. 201 2) ( stating § 3599 provides nothing beyond funding power and does not empower the court to order third

- party compliance) ; Baze v. Parker , 632 F.3d 338, 342

– 43 (6th Cir. 2011) (same).

S ection 3599’s authorization for funding neither confers nor implies an additional grant of jurisdiction to order state officials to act to facilitate an inmate ’ s clemency application

. We therefore vacate the district court’s orders directing state officia ls to transport or facilitate testing for purposes of Tisius’ s clemency case

. Because argument would not be helpful or assist us in analyzing this issue of statutory interpretation, Tisius’ s request for oral argument is denied.

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