Something odd happened during Monday’s 59-minute oral argument in Ayestas v. Davis, a widely anticipated capital habeas case about funding levels for federal habeas petitions brought by indigent defendants: Justice Anthony Kennedy said nary a word. Instead, in a session marked by what, in retrospect, appear to be distractions from the matter at hand, a majority of the justices seemed inclined to side with the petitioner, Carlos Manuel Ayestas, a Texas death-row inmate — and to reverse the conclusion of the U.S. Court of Appeals for the 5th Circuit that a prisoner must show a “substantial need” in order to be eligible to receive funding for “investigative, expert, or other services” as part of a federal habeas petition under 18 U.S.C. § 3599(f). Indeed, a narrow remand to the court of appeals to apply the correct standard may well help the Supreme Court to dodge some of the thornier issues that came up at various points during the argument.

As we noted in our argument preview, Congress has provided that federal courts in capital cases involving indigent defendants should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” Alone among the courts of appeals, the 5th Circuit has held that, in order for funding to be “reasonably necessary,” a petitioner challenging his sentence based on ineffective assistance of counsel must show a “substantial need” — that is, “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” When, as in Ayestas, the underlying claim involves a trial lawyer’s failure to conduct an adequate mitigation investigation at the sentencing phase of a capital case, the 5th Circuit’s standard effectively requires a petitioner to demonstrate not only that the investigation would be fruitful, but that its results would affect the outcome of the federal habeas case.

Arguing on behalf of Ayestas, University of Maryland law professor Lee Kovarsky faced surprisingly few questions about the 5th Circuit’s interpretation of the federal funding statute. Instead, Chief Justice John Roberts pushed Kovarsky on an argument raised by the state for the first time in the Supreme Court — that a different law (the federal habeas statute) itself limits the funding that could be “reasonably necessary” insofar as it restricts the kind of new evidence that can be admitted in a federal post-conviction proceeding. Kovarsky responded both that it’s not clear whether that statute — the Antiterrorism and Effective Death Penalty Act — has the effect urged by Texas (and 15 additional states, as amici), and that Texas failed to raise that argument below, the 5th Circuit didn’t rely on it, and therefore the justices shouldn’t consider it.

Justice Samuel Alito pivoted to the state’s jurisdictional argument suggesting that denials of funding are nonjudicial “administrative” orders that cannot be appealed, but seemed to find no takers among his colleagues. The argument then finally turned to the merits, with a prolonged exchange between Kovarsky and four of the justices over the difference between the “reasonably necessary” language of the statutory text and the Fifth Circuit’s “substantial need” approach. Although Kovarsky seemed to parse the daylight between the two effectively, he met some resistance toward the end of his presentation from Justice Neil Gorsuch, who raised a novel jurisdictional issue that had not been briefed by any of the parties or the amici. Justice Stephen Breyer appeared to come to Kovarsky’s rescue, though, suggesting a way in which the court’s disposition could be styled that would allow the justices to reverse the 5th Circuit while finessing the jurisdictional issue raised by the court’s newest member.

Arguing for the state as the respondent, Texas Solicitor General Scott Keller faced intense questioning from Justices Sonia Sotomayor and Breyer on what the latter referred to as the state’s “unusual jurisdictional argument”—that courts of appeals lack the power to review district court decisions denying funding under Section 3599(f). Justice Elena Kagan then pointed out the potential problem of an unreviewable division of authority among the circuits on the question presented, but the real turning point may have been when Roberts jumped in to direct the discussion back to the merits, hinting at his assessment of the strength of the state’s jurisdictional position. Turning to those merits, Keller held up well against intense questioning from across the bench, but did not appear to be making significant headway, especially in suggesting not only that Ayestas could not show that deficient performance by his trial counsel prejudiced him, but that the lawyer’s performance may not have been deficient in the first place. That suggestion drew pointed questions in response not just from the justices who tend to be more friendly to criminal defendants, but from Gorsuch as well.

But perhaps the strongest indication of the case’s likely outcome came toward the end of Keller’s presentation, when Breyer all-but described the outline of a potential opinion for the court, which would say: “This circuit, you are to follow the statute. And that’s it. Good-bye. And all these other arguments are for the lower court.” Although Keller stressed that such a decision should still clarify certain open legal points, he otherwise seemed to accept his fate. So too, apparently, did Breyer’s colleagues, who left Kovarsky to his three-minute rebuttal without interruption.

Recommended Citation: Steve Vladeck, Argument analysis: Major capital habeas case appears headed toward narrow reversal, SCOTUSblog (Oct. 30, 2017, 8:17 PM), https://www.scotusblog.com/2017/10/argument-analysis-major-capital-habeas-case-appears-headed-toward-narrow-reversal/