IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70030

ARTHUR BROWN, JR.,

Petitioner – Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent – Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Texas death row inmate Arthur Brown, Jr., has exhausted all state and 

federal habeas appeals. He has, however, filed a Texas state petition for 

clemency and his execution has been stayed by the Texas courts. He moved 

the federal district court to allow funds to hire a mitigation specialist to assist 

him in his state clemency proceedings. Although Brown requested $7,500 in 

his motion, his mitigation specialist estimated the investigation would cost 

$20,000. The district court turned him down. He now appeals the district 

court’s denial of his motion. We find no abuse of discretion in denying the 

funding and AFFIRM the order of the district court denying Brown’s motion.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2014

Lyle W. Cayce

Clerk

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I.

Brown was convicted of capital murder for his role in the murders of four 

people. We described the crime in our previous opinion as follows:

Rachel Tovar and her husband, Jose, were drug dealers in 

Houston, Texas. They supplied marijuana and cocaine to other 

drug dealers, including Brown and his associates, who were from 

Tuscaloosa, Alabama. On June 19, 1992, Brown traveled from 

Tuscaloosa to Houston, accompanied by Marion Dudley, Antonio 

Dunson, and Maliek Travis. They arrived at the Houston 

residence of Brown’s sister, Grace, early in the morning on June 

20.

That evening, six people were bound and shot in the head at 

Rachel Tovar’s residence in Houston. Four of them died: Jessica 

Quinones, the pregnant common-law wife of Rachel Tovar’s son, 

Anthony; Jose Guadalupe Tovar, Rachel Tovar’s husband; Audrey 

Brown, one of Rachel Tovar’s neighbors; and Frank Farias, Rachel 

Tovar’s son. Rachel Tovar and Alexander Camarillo, also known 

as Nicolas Cortez Anzures, survived and testified at Brown’s trial. 

Both of them identified Brown and Dudley, whom Tovar knew, 

from previous drug deals, by the nicknames of “Squirt” and “Red,” 

as the shooters. Three of Brown’s sisters––Serisa Ann Brown, 

Grace Brown, and Carolyn Momoh––testified as witnesses for the 

State at the guilt-innocence phase. All three of them claimed that 

the police and prosecutors had threatened them in order to coerce 

their cooperation. Carolyn Momoh was held in contempt and 

incarcerated at one point during the trial for invoking the Fifth 

Amendment, despite the fact that she had been given immunity. 

After she eventually testified, she was convicted of perjury. The 

jury convicted Brown of capital murder.

Brown v. Thaler, 684 F.3d 482, 486 (5th Cir. 2012) (footnote omitted).

At the punishment phase, the State presented evidence that Brown had 

committed an armed robbery four years earlier, that he had extorted other 

prisoners while in jail awaiting trial, and that he had assaulted a deputy at 

the jail. Brown’s counsel presented evidence that he had a low IQ, suffered 

from learning disabilities, and did not do well in special education classes. 

They also presented the testimony of a law professor that prisoners become 

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less violent as they get older. Trial counsel’s cross-examination of Brown’s 

sister, Serisa Ann Brown, during the guilt-innocence phase of the trial also 

resulted in the presentation of some mitigating evidence. She testified that 

Brown had 32 brothers and sisters, that Brown’s mother was present in the 

courtroom during the trial, that Brown was only 23 years old, that Brown had 

three children, and that Brown was close to the mother of his three children.

In the state habeas proceedings, Brown’s counsel obtained $2,500 from 

the Texas Court of Criminal Appeals (TCCA) for a mitigation specialist. The 

mitigation specialist, Lisa Milstein, traveled to Tuscaloosa, Alabama, where 

she interviewed Brown’s parents, his brother, and his three sisters. She 

obtained an affidavit from Brown’s mother in which she stated that she drank 

alcohol excessively during her pregnancy with Brown. Brown’s state habeas 

counsel sought an additional $2,700 for Milstein to complete her investigation. 

That request was supported by Milstein’s statement in which she outlined the 

evidence she had discovered and described the evidence she wanted to develop 

through additional investigation. The state court denied the additional 

funding request. 

In his state habeas application, Brown claimed that trial counsel 

rendered ineffective assistance in the investigation and presentation of 

mitigating evidence. As support for his claim, Brown relied on the affidavit of 

his mother, in which she described her drinking while she was pregnant with 

him, and the affidavit of mitigation specialist Milstein, describing her 

investigation into Brown’s background. We described the contents of Milstein’s 

affidavit in our previous opinion, as follows:

Milstein stated that Brown’s mother, Joe Mae Brown, . . . told 

Milstein that when Brown was three years old, he fell from a swing 

and struck his head on a cement porch. Mrs. Brown took him to a 

hospital, where the attending physician determined that he had a 

concussion. Milstein stated that Mrs. Brown told her that Brown 

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had headaches two to three times a week for several months after 

the concussion, but they never took him for a follow-up visit with 

the doctor. Mrs. Brown also told Milstein that she was married to 

Brown’s father when Brown was born, but that they divorced when 

he was twelve years old; that during the marriage, Brown’s father 

beat her; that Brown was close to his father, and she started 

having problems with Brown after the divorce; and that Brown 

threatened to commit suicide by jumping out of a window at his 

school.

According to Milstein, she did not learn of Brown’s mother’s 

history of alcohol abuse while interviewing Mrs. Brown, but 

learned of it later from interviews with other family members. 

Milstein stated that Brown’s sister, Serisa, told her that Mrs. 

Brown often went out drinking at night, leaving the children alone 

at home, and returning heavily intoxicated in the early morning. 

Sometimes when she returned home she woke the children and 

made them pray throughout the rest of the night. As a result, the 

children were frequently tired at school. According to Milstein, 

Grace Brown, another of Brown’s sisters, stated that Brown was 

exposed to his mother’s drinking as a child and was embarrassed 

by her appearance in public while drunk. Milstein said that Grace 

also told her that after the divorce, their mother’s drinking friends 

came around more often.

Milstein stated that when she confronted Mrs. Brown, Mrs. 

Brown admitted that she drank on a daily, or near daily, basis; 

that she drank heavily throughout her pregnancy with Brown; and 

that she obtained homemade bootleg whiskey from one of her 

sisters. Milstein believed that Mrs. Brown was likely an alcoholic. 

In her handwritten affidavit, Mrs. Brown stated that she drank 

while pregnant with Brown, at least every weekend and often 

during the week. She estimated that she consumed at least a pint 

of bootleg whiskey or brandy. Milstein believed that Mrs. Brown’s 

alcohol abuse during her pregnancy with Brown was an important 

mitigating fact, because it might have caused organic brain 

damage called Fetal Alcohol Syndrome or Fetal Alcohol Effect.

Milstein reported that she learned from her investigation 

that Brown had an impoverished upbringing. After his parents’ 

divorce, he lived with his mother and three other siblings in a 

small apartment in a poor area of Tuscaloosa, in a neighborhood 

that contained drugs and violence. According to Milstein, Brown’s 

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childhood was one marked by deprivation, including lack of food, 

clothing, guidance, and a father figure. Brown was devastated by 

his parents’ divorce and was left in the hands of a drunken and 

abusive mother.

Milstein stated that Brown had a stable relationship in 

Tuscaloosa with his common-law wife and that he worked at 

legitimate jobs to provide for her and their three children. Milstein 

stated that Brown’s sister Grace told her that Brown had an 

intense work ethic and had on occasion worked two jobs at once to 

support his family. Milstein reported that each of Brown’s sisters 

told her that Brown’s trial counsel did not ask them any questions 

regarding mitigating evidence.

684 F.3d at 493–94.

The TCCA denied Brown’s state habeas application. Ex parte Brown, 

No. WR-26178-02, 2008 WL 2487788 (Tex. Crim. App. June 18, 2008) 

(unpublished). 

In his federal habeas petition, Brown claimed that the state courts 

violated his constitutional rights by failing to provide additional funds and that 

trial counsel rendered ineffective assistance by not putting the contents of the 

two affidavits into evidence at trial. The district court held that the state 

habeas court’s decision to deny the ineffective assistance claim was not 

contrary to, or an unreasonable application of, federal law. Brown v. Thaler, 

No. H-09-74, 2011 WL 798391 (S.D. Tex. Feb. 28, 2011) (unpublished). The 

district court stated that there was not a reasonable probability that the jury 

would have made a different assessment of Brown’s moral culpability had his 

trial counsel presented the evidence that Brown claimed should have been 

presented, as described in the affidavits of Milstein and his mother. It denied 

habeas relief and denied a certificate of appealability (COA).

Brown requested a COA from this court for his claim that his trial 

counsel rendered ineffective assistance by failing to investigate available 

mitigating evidence concerning his difficult childhood and troubled 

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background, including his mother’s alcohol abuse, by failing to retain mental 

health experts to evaluate his low intelligence, and by failing to explore 

whether he suffers from Fetal Alcohol Spectrum Disorder. This court denied 

Brown’s request for a COA. 684 F.3d 482. The Supreme Court denied 

certiorari. Brown v. Thaler, 133 S. Ct. 1244 (2013).

After Brown’s execution was scheduled, he filed in the district court an 

ex parte motion for authorization of funding and for appointment of a 

mitigation investigator to assist in clemency proceedings. He asked the district 

court to appoint Nicole VanToorn, a mitigation specialist, at an estimated cost 

of $20,000, to complete the investigation that Milstein started in the state 

habeas proceedings. He sought to develop a complete life and social history, 

including evidence of poverty, family violence, exposure to drugs and alcohol 

during childhood, and brain impairments caused by his mother’s excessive 

drinking during her pregnancy with him. The district court denied Brown’s 

request for funds, holding that he had not shown that the proposed 

investigation is reasonably necessary for the purposes of clemency.

Brown filed a clemency petition on October 7, 2013. The State withdrew 

the execution date in order to allow Brown to seek retesting of certain trial 

evidence, and Brown withdrew the clemency petition. This appeal is not moot, 

however, because of the likelihood that the State will reschedule Brown’s 

execution.

II.

Brown argues that the district court abused its discretion in denying 

funds for a mitigation specialist. He contends that the court mischaracterized 

his proposed investigation as a request to obtain affidavits from the witnesses 

Milstein had previously identified and interviewed. Instead, he maintains that 

his proposed investigation was designed to follow up on the leads that Milstein 

had uncovered and to obtain first-hand witness accounts concerning his

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upbringing and family history. He asserts that Milstein’s affidavit indicates 

that there are numerous red flags that more important mitigating evidence 

exists and should be developed and presented in clemency proceedings, and 

that it is unfair to limit him to the evidence that Milstein uncovered in 1998, 

because her investigation was incomplete and does not accurately and fully 

portray his upbringing and family history. Brown contends further that the 

district court substituted its judgment concerning Brown’s entitlement to 

clemency for that of the Parole Board and Governor. He points out that the 

Board may consider defects in the justice system, as well as questions of mercy 

and moral culpability, untethered by the legal standards applicable in prior 

judicial proceedings.

We review the denial of funding for investigative or expert assistance for 

an abuse of discretion. Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009); 

Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). In Harbison v. Bell, 556 

U.S. 180, 183 (2009), the Supreme Court held that 18 U.S.C. § 3599 authorizes 

federally funded counsel appointed to represent an indigent state prisoner in 

federal habeas proceedings to represent him in subsequent state clemency 

proceedings. 

Section 3599 provides further that

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) (emphasis added). Subsection (g) provides that

Fees and expenses paid for investigative, expert, and other 

reasonably necessary services authorized under subsection (f) 

shall not exceed $7,500 in any case, unless payment in excess of 

that limit is certified by the court . . . as necessary to provide fair 

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compensation for services of an unusual character or duration, and 

the amount of the excess payment is approved by the chief judge 

of the circuit.

18 U.S.C. § 3599(g)(2).

In addressing requests for funding for expert or investigative assistance 

in federal habeas proceedings, this court has interpreted “reasonably 

necessary” to mean that the petitioner must show that he has “a substantial 

need” for the requested assistance. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 

2004). In the federal habeas context, we have held that a district court may 

deny an inmate’s request for funds “when a petitioner has (a) failed to 

supplement his funding request with a viable constitutional claim that is not 

procedurally barred, or (b) when the sought-after assistance would only 

support a meritless claim, or (c) when the sought after assistance would only 

supplement prior evidence.” Smith, 422 F.3d at 288 (citations omitted)

(addressing request for funds to obtain the assistance of an expert psychologist 

in federal habeas proceedings). 

The district court noted that questions about the procedural adequacy of 

a claim have no bearing on the clemency process, but it nevertheless concluded 

that an inquiry into the merits of the proposed investigation still applies to 

requests for funds to support clemency. Therefore, it held that Brown was 

required to show that the proposed investigation would not just supplement 

prior evidence or support meritless claims. The district court held that Brown 

had not shown that federal funds for a mitigation investigation, especially one 

as expensive as the one he proposed, were reasonably necessary for the 

purposes of clemency. Although Brown requested only $7,500 in his motion, 

his mitigation specialist estimated that the investigation would cost $20,000. 

The court pointed out that the estimated cost of the investigation was nearly 

three times the statutory limit of $7,500 and that, for funds over that limit, 

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Brown must show that the requested assistance is of “unusual character or 

duration.” 18 U.S.C. § 3599(g)(2). The court found that Brown had not shown 

what mitigating evidence remains undiscovered and that he only sought to 

amass more, not fundamentally different, mitigation evidence. The court 

stated that, other than interviewing more witnesses, Brown had not shown 

what information was missed by Milstein. Further, he did not propose any 

mitigation theory that exceeded the contours of the affidavits he presented on 

federal habeas review and his request for investigative assistance followed the 

same mitigating avenues outlined in Milstein’s and his mother’s affidavits. 

The court concluded that it was speculative whether additional investigation 

would uncover information different from that contained in Milstein’s report. 

The court concluded that federal courts have no obligation to authorize fishing 

expeditions and that federal law does not authorize funding for speculative 

investigation in the hopes that Brown may turn up something new.

Our court has not addressed a request for funding for investigative 

services in the clemency context. In determining whether such services are 

“reasonably necessary,” consideration must be given to the nature and purpose 

of clemency proceedings. The clemency process takes place only after all 

judicial proceedings have been completed. In capital cases, such judicial 

proceedings include, at a minimum, trial, direct appeal, state post-conviction 

review, and federal habeas review, in all of which proceedings indigent 

prisoners are provided with legal representation and investigative and expert 

assistance at taxpayer expense. Clemency “proceedings are a matter of grace 

entirely distinct from judicial proceedings.” Harbison, 556 U.S. at 192. 

“Clemency is deeply rooted in our Anglo-American tradition of law, and is the 

historic remedy for preventing miscarriages of justice where judicial process 

has been exhausted.” Herrera v. Collins, 506 U.S. 390, 411–12 (1993) (footnote 

omitted). Thus, when a petitioner requests funds for investigative services for 

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the purpose of clemency proceedings, the petitioner must show that the 

requested services are reasonably necessary to provide the Governor and 

Board of Pardons and Paroles the information they need in order to determine 

whether to exercise their discretion to extend grace to the petitioner in order 

to prevent a miscarriage of justice. Accordingly, it was appropriate for the 

district court to consider the merits of the proposed investigation and to 

consider whether the proposed investigation would only supplement prior 

evidence that had already been considered in the judicial proceedings and was 

thus available to the Board and the Governor.

We hold that the district court did not abuse its discretion in denying 

Brown’s request for funds. Brown sought funds for the purpose of completing 

the investigation commenced by Milstein in the state habeas proceedings, to 

develop evidence of poverty, family violence, exposure to drugs and alcohol 

during childhood, and brain impairments caused by his mother’s excessive 

consumption of alcohol during her pregnancy. Although Milstein estimated 

that she could complete her investigation in 54 hours, Brown requested 

authorization for nearly four times that number of hours for the proposed 

investigation by VanToorn. As the district court observed, there can be little 

doubt but that the facts of Brown’s crime will weigh heavily in his clemency 

proceedings. Those facts are brutal: Brown and his accomplices bound and 

shot six people in the head, execution-style. Although two of the victims 

survived, one of the four who died was a nearly nine-months pregnant 

teenager. In his request for funds, Brown offered little beyond speculation that 

the proposed additional investigation would uncover some information 

different from that Milstein described in her report and affidavit. Brown failed 

to demonstrate that the proposed investigation by VanToorn was reasonably 

necessary to provide the Board of Pardons and Paroles and the Governor with 

material information beyond that already adduced by Milstein. Accordingly, 

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the district court did not abuse its discretion by denying funding for such 

investigation.

III.

Brown has not demonstrated that the funds he requested for 

investigative services are reasonably necessary for clemency proceedings. 

Accordingly, the district court did not abuse its discretion by denying the 

requested funds. The order of the district court is therefore

AFFIRMED.

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