NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
CARLOS MANUEL AYESTAS, aka DENNIS ZELAYA COREA, PETITIONER v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 21, 2018]
Justice Alito delivered the opinion of the Court.
Petitioner Carlos Ayestas, who was convicted of murder and sentenced to death in a Texas court, argues that he was wrongfully denied funding for investigative services needed to prove his entitlement to federal habeas relief. Petitioner moved for funding under
18 U. S. C. §3599(f ), which makes funds available if they are “reasonably necessary,” but petitioner’s motion was denied. We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings.
In 1997, petitioner was convicted of capital murder in a Texas court. Evidence at trial showed that he and two accomplices invaded the home of a 67-year-old Houston woman, Santiaga Paneque, bound her with duct tape and electrical cord, beat and strangled her, and then made off with a stash of her belongings.
The jury also heard testimony from Henry Nuila regarding an incident that occurred about two weeks after the murder. Petitioner was drunk at the time, and he revealed to Nuila that he had recently murdered a woman in Houston. Petitioner then brandished an Uzi machinegun and threatened to murder Nuila if he did not help petitioner kill his two accomplices. Fortunately for Nuila, petitioner kept talking until he eventually passed out; Nuila then called the police, who arrested petitioner, still in possession of the gun.
After the jury found petitioner guilty, it was asked to determine whether he should be sentenced to death or to life in prison. In order to impose a death sentence, Texas law required the jury to answer the following three questions. First, would petitioner pose a continuing threat to society? Second, had he personally caused the death of the victim, intended to kill her, or anticipated that she would be killed? Third, in light of all the evidence surrounding the crime and petitioner’s background, were there sufficient mitigating circumstances to warrant a sentence of life without parole instead of death? Tex. Code Crim. Proc. Ann., Art. 37.071, §§2(b), (e) (Vernon Cum. Supp. 2017). Only if the jury gave a unanimous yes to the first two questions, and a unanimous no to the third question, could a death sentence be imposed; otherwise, petitioner would receive a sentence of life without parole. See §§2(d)(2), (f )(2), (g).
In asking the jury to impose a death sentence, the prosecution supplemented the trial record with evidence of petitioner’s criminal record and his encounter with a man named Candelario Martinez a few days after the murder. Martinez told the jury that he was standing in a hotel parking lot waiting for a friend when petitioner approached and began to make small talk. Before long, petitioner pulled out a machinegun and forced Martinez into a room where two of petitioner’s compatriots were holding Martinez’s friend at knifepoint. Ordered to lie down on the bathroom floor and await his execution, Martinez begged for his life while petitioner and his cohorts haggled about who would carry out the killing. Finally, petitioner relented, but he threatened to kill Martinez and his family if he contacted the police. Petitioner then stole Martinez’s truck.
Petitioner’s trial counsel presented very little mitigation evidence. This was due, at least in part, to petitioner’s steadfast refusal for many months to allow his lawyers to contact his family members, who were living in Honduras and might have testified about his character and upbringing. Petitioner gave in on the eve of trial, and at that point, according to the state habeas courts, his lawyers “made every effort to contact [his] family.” App. 171. They repeatedly contacted petitioner’s family members and urged them to attend the trial; they requested that the U. S. Embassy in Honduras facilitate family members’ travel to the United States; and they met in person with the Honduran Consulate to seek assistance. But these efforts were to no avail. Petitioner’s sister told his legal team that the family would not leave Honduras because the journey would create economic hardship and because their father was ill and had killed one of their neighbors. A defense attorney who spoke to petitioner’s mother testified that she seemed unconcerned about her son’s situation. In general, the state habeas courts found, petitioner “did nothing to assist counsel’s efforts to contact his family and did not want them contacted by the consulate or counsel.” Id.,
In the end, the only mitigation evidence introduced by petitioner’s trial counsel consisted of three letters from petitioner’s English instructor. The letters, each two sentences long, described petitioner as “a serious and attentive student who is progressing well in English.” Ibid.
The jury unanimously concluded that petitioner should be sentenced to death, and a capital sentence was imposed. Petitioner secured new counsel to handle his appeal, and his conviction and sentence were affirmed by the Texas Court of Criminal Appeals in 1998. Ayestas
, No. 72,928, App. 115. Petitioner did not seek review at that time from this Court.
While petitioner’s direct appeal was still pending, a third legal team filed a habeas petition on his behalf in state court. This petition included several claims of trial-level ineffective assistance of counsel, but the petition did not assert that trial counsel were ineffective for failing to investigate petitioner’s mental health and abuse of alcohol and drugs. Petitioner’s quest for state habeas relief ended unsuccessfully in 2008. Ex parte Ayestas
, No. WR–69,674–01 (Tex. Ct. Crim. App., Sept. 10, 2008), 2008 WL 4151814 (per curiam
In 2009, represented by a fourth set of attorneys, petitioner filed a federal habeas petition under
28 U. S. C. §2254, and this time he did
allege that his right to the effective assistance of counsel at trial was violated because his attorneys failed to conduct an adequate search for mitigation evidence. As relevant here, petitioner argued that trial counsel overlooked evidence that he was mentally ill and had a history of drug and alcohol abuse. Ayestas
, Civ. Action No. H–09–2999 (SD Tex., Jan. 26, 2011), 2011 WL 285138, *4. Petitioner alleged that he had a history of substance abuse, and he noted that he had been diagnosed with schizophrenia while the state habeas proceeding was still pending. See Pet. for Writ of Habeas Corpus in Ayestas
, No. 4:09–cv–2999 (SD Tex.), Doc. 1, pp. 21–23. Petitioner claimed that trial counsel’s deficient performance caused prejudice because there was a reasonable chance that an adequate investigation would have produced mitigation evidence that would have persuaded the jury to spare his life.
Among the obstacles standing between petitioner and federal habeas relief, however, was the fact that he never raised this trial-level ineffective-assistance-of-counsel claim in state court. The District Court therefore held that the claim was barred by procedural default, Ayestas
, 2011 WL 285138, *4–*7, and the Fifth Circuit affirmed, Ayestas
, 462 Fed. Appx. 474, 482 (2012) (per curiam
Petitioner sought review in this Court, and we vacated the decision below and remanded for reconsideration in light of two of our subsequent decisions, Martinez
566 U. S. 1 (2012)
, and Trevino
569 U. S. 413 (2013)
569 U. S. 1015 (2013)
held that an Arizona prisoner seeking federal habeas relief could overcome the procedural default of a trial-level ineffective-assistance-of-counsel claim by showing that the claim is substantial and that state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding. 566 U. S., at 14. Trevino
extended that holding to Texas prisoners, 569 U. S., at 416–417, and on remand, petitioner argued that he fell within Trevino
because effective state habeas counsel would have uncovered evidence showing that trial counsels’ investigative efforts were deficient.
To assist in developing these claims, petitioner filed an ex parte
motion asking the District Court for $20,016 in funding to conduct a search for evidence supporting his petition. He relied on
18 U. S. C. §3599(f ), which provides in relevant part as follows:
“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.”
Petitioner averred that the funds would be used to conduct an investigation that would show that his trial counsel and his state habeas counsel were ineffective. Accordingly, he claimed, the investigation would establish both that his trial-level ineffective-assistance-of-counsel claim was not barred by procedural default and that he was entitled to resentencing based on the denial of his
Sixth Amendment right to the effective assistance of trial counsel.
The District Court refused the funding request and ultimately denied petitioner’s habeas petition. Ayestas
, Civ. Action No. H–09–2999, (SD Tex., Nov. 18, 2014), 2014 WL 6606498, *6–*7. On the merits of petitioner’s new ineffective-assistance-of-trial-counsel claim, the District Court held that petitioner failed both prongs of the Strickland
test. See Strickland
466 U. S. 668 (1984)
. Noting that most of the evidence bearing on petitioner’s mental health had emerged only after he was sentenced, the court concluded that petitioner’s trial lawyers were not deficient in failing to find such evidence in time for the sentencing proceeding. 2014 WL 6606498, *5. In addition, the court found that state habeas counsel did not render deficient performance by failing to investigate petitioner’s history of substance abuse, and that, in any event, petitioner was not prejudiced at the sentencing phase of the trial or during the state habeas proceedings because the potential mitigation evidence at issue would not have made a difference to the jury in light of “the extremely brutal nature of [the] crime and [petitioner’s] history of criminal violence.” Ibid.
With respect to funding, the District Court pointed to Fifth Circuit case law holding that a §3599(f ) funding applicant cannot show that investigative services are “ ‘reasonably necessary’ ” unless the applicant can show that he has a “ ‘substantial need’ ” for those services. Id.,
at *6. In addition, the court noted that “[t]he Fifth Circuit upholds the denial of funding” when, among other things, “a petitioner has . . . failed to supplement his funding request with a viable constitutional claim that is not procedurally barred.” Ibid
. (internal quotation marks omitted).
Given its holding that petitioner’s new ineffective-assistance-of-counsel claim was precluded by procedural default, this rule also doomed his request for funding. The District Court denied petitioner’s habeas petition and refused to grant him a certificate of appealability (COA). Id.,
at *7. On appeal, the Fifth Circuit held that a COA was not needed for review of the funding issue, but it rejected that claim for essentially the same reasons as the District Court, citing both the “substantial need” test and the rule that funding may be denied when a funding applicant fails to present “a viable constitutional claim that is not procedurally barred.” Ayestas
, 817 F. 3d 888, 895–896 (2016) (internal quotation marks omitted). With respect to petitioner’s other claims, including his claim of ineffective assistance of trial counsel, the Fifth Circuit refused to issue a COA. Id.,
We granted certiorari to decide whether the lower courts applied the correct legal standard in denying the funding request. 581 U. S. ___ (2017).
Before we reach that question, however, we must consider a jurisdictional argument advanced by respondent, the Director of the Texas Department of Criminal Justice.[1
] Respondent contends that the District Court’s denial of petitioner’s funding request was an administrative, not a judicial, decision and therefore falls outside the scope of the jurisdictional provisions on which petitioner relied in seeking review in the Court of Appeals and in this Court.
When the District Court denied petitioner’s funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U. S. C. §§1291 and 2253, which grant the courts of appeals jurisdiction to review final “decisions” and “orders” of a district court.[2
] And when the Fifth Circuit affirmed, petitioner sought review in this Court under §1254, which gives us jurisdiction to review “[c]ases” in the courts of appeals.[3
] As respondent correctly notes, these provisions confer jurisdiction to review decisions made by a district court in a judicial
capacity. But we have recognized that not all decisions made by a fed- eral court are “judicial” in nature; some decisions are prop- erly understood to be “administrative,” and in that case they are “not subject to our review.” Hohn
v. United States
524 U. S. 236,
The need for federal judges to make many administrative decisions is obvious. The Federal Judiciary, while tiny in comparison to the Executive Branch, is nevertheless a large and complex institution, with an annual budget exceeding $7 billion and more than 32,000 employees. See Administrative Office of the U. S. Courts, The Judiciary FY 2018 Congressional Budget Summary Revised 9–10 (June 2017). Administering this operation requires many “decisions” in the ordinary sense of the term—decisions about such things as facilities, personnel, equipment, supplies, and rules of procedure. In re Application for Exemption from Electronic Pub. Access Fees by Jennifer Gollan and Shane Shifflett,
728 F. 3d 1033, 1037 (CA9 2013). It would be absurd to suggest that every “final decision” on any such matter is appealable under §1291 or reviewable in this Court under §1254. See Hohn
; 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3903, pp. 134–135 (2d ed. 1992). Such administrative decisions are not the kind of decisions or orders—i.e.,
decisions or orders made in a judicial capacity—to which the relevant jurisdictional provisions apply.
Respondent argues that the denial of petitioner’s funding request was just such an administrative decision, but the District Court’s ruling does not remotely resemble the sort of administrative decisions noted above. Petitioner’s request was made by motion in his federal habeas proceeding, which is indisputably a judicial proceeding. And as we will explain, resolution of the funding question requires the application of a legal standard—whether the funding is “reasonably necessary” for effective representation—that demands an evaluation of petitioner’s prospects of obtaining habeas relief. We have never held that a ruling like that is administrative and thus not subject to appellate review under the standard jurisdictional provisions.
Respondent claims that two factors support the conclusion that the funding decision was administrative, but her argument is unpersuasive.
Respondent first argues as follows: Judicial proceedings must be adversarial;
18 U. S. C. §3599(f ) funding adjudications are not adversarial because the statute allows requests to be decided ex parte
; therefore, §3599(f ) funding adjudications are not judicial in nature. This reasoning is flawed.
It is certainly true that cases and controversies in our legal system are adversarial in nature, e.g., Bond
v. United States
564 U. S. 211,
; Aetna Life Ins. Co.
300 U. S. 227
–241 (1937), but here, both the habeas proceeding as a whole and the adjudication of the specific issue of funding were adversarial. That the habeas proceeding was adversarial is beyond dispute. And on the funding question, petitioner and respondent plainly have adverse interests and have therefore squared off as adversaries. The motion for funding was formally noted as “opposed” on the Disrict Court’s docket. App. 341. That is not surprising: On one side, petitioner is seeking funding that he hopes will prevent his execution. On the other, respondent wants to enforce the judgment of the Texas courts and to do so without undue delay. Petitioner and respondent have vigorously litigated the funding question all the way to this Court.
In arguing that the funding dispute is nonadversarial, respondent attaches too much importance to the fact that the request was made ex parte
. As we have noted, the “ex parte
nature of a proceeding has not been thought to imply that an act otherwise within a judge’s lawful jurisdiction was deprived of its judicial character.” Forrester
484 U. S. 219,
In our adversary system, ex parte
motions are disfavored, but they have their place. See, e.g., Hohn
at 248 (application for COA); Dalia
v. United States
441 U. S. 238,
(application for a search warrant);
50 U. S. C. §1805(a) (application to conduct electronic surveillance for foreign intelligence);
18 U. S. C. §2518(3) (applications to intercept “wire, oral, or electronic communications”);
15 U. S. C. §1116(d)(1)(A) (application to seize certain goods and counterfeit marks involved in violations of the trademark laws); Fed. Rule Crim. Proc. 17(b) (application for witness subpoena); Fed. Rule Crim. Proc. 47(c) (generally recognizing ex parte
motions and applications); Ullmann
v. United States
350 U. S. 422
–424, 434 (1956) (application for an order granting a witness immunity in exchange for self-incriminating testimony); United States
491 U. S. 600
–604 (1989) (motion to freeze defendant’s assets pending trial).
Thus, the mere fact that a §3599 funding request may sometimes be made ex parte
is hardly dispositive. See Hohn
, 524 U. S., at 249; Tutun
v. United States
270 U. S. 568,
Respondent’s second argument is based on the vener- able principle “that Congress cannot vest review of the decisions of Article III courts in” entities other than “superior courts in the Article III hierarchy.” Plaut
v. Spendthrift Farm, Inc
514 U. S. 211
–219 (1995) (citing Hayburn’s Case
, 2 Dall. 409 (1792)). Respondent claims that §3599 funding decisions may be revised by the Director of the Administrative Office of the Courts and that this shows that such decisions must be administrative. This argument, however, rests on a faulty premise. Nothing in §3599 even hints that review by the Director of the Administrative Office is allowed.
Respondent’s argument rests in part on a handful of old lower court cases that appear to have accepted Administrative Office review of Criminal Justice Act of 1964 (CJA) payments that had been authorized by a District Court and approved by the chief judge of the relevant Circuit. See United States
, 282 F. Supp. 664, 665 (SDNY 1968); United States
, 297 F. Supp. 620, 621–622 (Del. 1969); see also United States
, 385 F. Supp. 358, 362 (DC 1974). The basis for these decisions was a provision of the CJA,
18 U. S. C. §3006A(h) (1964 ed.), stating that CJA payments “shall be made under the supervision of the Director of the Administrative Office of the United States Courts.”[4
It is not clear whether these decisions correctly interpreted the CJA,[5
] but in any event, no similar language appears in §3599. And respondent has not identified a single instance in which the Director of the Administrative Office or any other nonjudicial officer has attempted to review or alter a §3599 decision.
Moreover, attorneys’ requests for CJA funds are markedly different from the funding application at issue here. Attorneys appointed under the CJA typically submit those requests after the conclusion of the case, and the prosecution has no stake in the resolution of the matter. The judgment in the criminal case cannot be affected by a decision on compensation for services that have been completed, and any funds awarded come out of the budget of the Judiciary, not the Executive. See
18 U. S. C. §3006A(i) (2012 ed.). Thus, the adversaries in the criminal case are not pitted against each other. In this case, on the other hand, as we have explained, petitioner and respondent have strong adverse interests. For these reasons, we reject respondent’s argument that the adjudication of the funding issue is nonadversarial and administrative.
Respondent, however, claims that the funding decision is administrative for an additional reason. “A §3599(f ) funding determination is properly deemed administrative,” she contends, “because it . . . may be revised outside the traditional Article III judicial hierarchy.” Brief for Respondent 23. The basis for this argument is a provision of §3599 stating that funding in excess of the generally applicable statutory cap of $7,500 must be approved by the chief judge of the circuit or another designated circuit judge. §3599(g)(2). If a funding decision is judicial and not administrative, respondent suggests, it could not be reviewed by a single circuit judge as opposed to a panel of three.
This argument confuses what is familiar with what is constitutionally required. Nothing in the Constitution ties Congress to the typical structure of appellate review established by statute. If Congress wishes to make certain rulings reviewable by a single circuit judge, rather than a panel of three, the Constitution does not stand in the way.
Satisfied that we have jurisdiction, we turn to the question whether the Court of Appeals applied the correct legal standard when it affirmed the denial of petitioner’s funding request.
Section 3599(a) authorizes federal courts to provide funding to a party who is facing the prospect of a death sentence and is “financially unable to obtain adequate representation or investigative, expert, or other reason- ably necessary services.” The statute applies to defendants in federal cases, §3599(a)(1), as well as to state and federal prisoners seeking collateral relief in federal court, §3599(a)(2).
Here we are concerned not with legal representation but with services provided by experts, investigators, and the like. Such services must be “reasonably necessary for the representation of the [applicant]” in order to be eligible for funding. §3599(f ). If the statutory standard is met, a court “may authorize the [applicant’s] attorneys to obtain such services on [his] behalf.” Ibid.
The Fifth Circuit has held that individuals seeking funding for such services must show that they have a “substantial need” for the services. 817 F. 3d, at 896; Allen
, 805 F. 3d 617, 626 (2015); Ward
, 777 F. 3d 250, 266, cert. denied, 577 U. S. ___ (2015). Petitioner contends that this interpretation is more demanding than the standard—“reasonably necessary”—set out in the statute. And although the difference between the two formulations may not be great, petitioner has a point.
In the strictest sense of the term, something is “necessary” only if it is essential. See Webster’s Third New International Dictionary 1510 (1993) (something is necessary if it “must be by reason of the nature of things,” if it “cannot be otherwise by reason of inherent qualities”); 10 Oxford English Dictionary 275–276 (2d ed. 1989) (OED) (defining the adjective “necessary” to mean “essential”). But in ordinary speech, the term is often used more loosely to refer to something that is merely important or strongly desired. (“I need a vacation.” “I need to catch up with an old friend.”) The term is sometimes used in a similar way in the law. The term “necessary” in the Necessary and Proper Clause does not mean “absolutely
, 4 Wheat. 316, 414–415 (1819), and a “necessary” business expense under the Internal Revenue Code,
26 U. S. C. §162(a), may be an expense that is merely helpful and appropriate, Commissioner
383 U. S. 687,
. As Black’s Law Dictionary puts it, the term “may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought.” Black’s Law Dictionary 928 (5th ed. 1979) (Black’s).
Section 3599 appears to use the term “necessary” to mean something less than essential. The provision applies to services that are “reasonably necessary,” but it makes little sense to refer to something as being “reasonably essential.” What the statutory phrase calls for, we conclude, is a determination by the district court, in the exercise of its discretion, as to whether a reasonable attorney would regard the services as sufficiently important, guided by the considerations we set out more fully below.
The Fifth Circuit’s test—“substantial need”—is arguably more demanding. We may assume that the term “need” is comparable to “necessary”—that is, that something is “needed” if it is “necessary.” But the term “substantial” suggests a heavier burden than the statutory term “reasonably.” Compare 13 OED 291 (defining “reasonably” to mean, among other things, “[s]ufficiently, suitably, fairly”; “[f ]airly or pretty well”) with 17 id
at 66–67 (defining “substantial,” with respect to “reasons, causes, evidence,” to mean “firmly or solidly established”); see also Black’s 1456 (10th ed. 2014) (defining “reasonable” to mean “[f ]air, proper, or moderate under the circumstances . . . See plausible”); id.,
at 1656 (defining “substantial” to mean, among other things, “[i]mportant, essential, and material”).
The difference between “reasonably necessary” and “substantially need[ed]” may be small, but the Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas petitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.” 817 F. 3d, at 895 (internal quotation marks omitted). See also, e.g., Riley
, 362 F. 3d 302, 307 (CA5 2004) (“A petitioner cannot show a substantial need when his claim is procedurally barred from review”); Allen
at 638–639 (describing “ ‘our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from review’ ” (quoting Crutsinger
, 576 Fed. Appx. 422, 431 (CA5 2014) (per curiam
at 266 (“The denial of funding will be upheld . . . when the constitutional claim is procedurally barred”).
The Fifth Circuit adopted this rule before our decision in Trevino
, but after Trevino
, the rule is too restrictive. Trevino
permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective, 569 U. S., at 429, and it is possible that investigation might enable a petitioner to carry that burden. In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.
Congress has made it clear, however, that district courts have broad discretion in assessing requests for funding. Section 3599’s predecessor declared that district courts “shall authorize” funding for services deemed “reasonably necessary.”
21 U. S. C. §848(q)(9) (1988 ed.). Applying this provision, courts of appeals reviewed district court funding decisions for abuse of discretion. E.g., Bonin
, 59 F. 3d 815, 837 (CA9 1995); In re Lindsey
, 875 F. 2d 1502, 1507, n. 4 (CA11 1989); United States
, 767 F. 2d 314, 319 (CA7 1984). Then, as part of the Antiterrorism and Effective Death Penalty Act of 1996,
1226, Congress changed the verb from “shall” to “may,” and thus made it perfectly clear that determining whether funding is “reasonably necessary” is a decision as to which district courts enjoy broad discretion. See Kingdomware Technologies, Inc.
v. United States
, 579 U. S. ___, ___ (2016) (slip op., at 9).
A natural consideration informing the exercise of that discretion is the likelihood that the contemplated services will help the applicant win relief. After all, the proposed services must be “reasonably
necessary” for the applicant’s representation, and it would not be reasonable—in fact, it would be quite unreasonable—to think that services are necessary to the applicant’s representation if, realistically speaking, they stand little hope of helping him win relief. Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.
To be clear, a funding applicant must not be expected to prove
that he will be able to win relief if given the services he seeks. But the “reasonably necessary” test requires an assessment of the likely utility of the services requested, and §3599(f ) cannot be read to guarantee that an applicant will have enough money to turn over every stone.
Petitioner does not deny this. He agrees that an applicant must “articulat[e] specific reasons why the services are warranted”—which includes demonstrating that the underlying claim is at least “ ‘plausible’ ”—and he acknowledges that there may even be cases in which it would be within a court’s discretion to “deny funds after a finding of ‘reasonable necessity.’ ” Brief for Petitioner 43.
These interpretive principles are consistent with the way in which §3599’s predecessors were read by the lower courts. See, e.g., Alden
at 318–319 (explaining that it was “appropriate for the district court to satisfy itself that [the] defendant may have a plausible defense before granting the defendant’s . . . motion for psychiatric assistance to aid in that defense,” and that it is not proper to use the funding statute to subsidize a “ ‘fishing expedition’ ”); United States
, 480 F. 2d 556, 557 (CA5 1973) (per curiam
) (upholding District Court’s refusal to fund psychiatric services based on the District Court’s conclusion that “the request for psychiatric services was . . . lacking in merit” because there was “no serious possibility that appellant was legally insane at any time pertinent to the crimes committed”). This abundance of precedent shows courts have plenty of experience making the determinations that §3599(f) contemplates.
Perhaps anticipating that we might not accept the Fifth Circuit’s reading of §3599(f), respondent devotes a substantial portion of her brief to an alternative ground for affirmance that was neither presented nor passed on below.
Respondent contends that whatever “reasonably necessary” means, funding is never
“reasonably necessary” in a case like this one, where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record. Citing
28 U. S. C. §2254(e)(2), respondent contends that the fruits of any such investigation would be inadmissible in a federal habeas court.
We decline to decide in the first instance whether respondent’s reading of §2254(e)(2) is correct. Petitioner agrees that the argument remains open for the Fifth Circuit to consider on remand. Tr. of Oral Arg. 6.
* * *
We conclude that the Fifth Circuit’s interpretation of §3599(f ) is not a permissible reading of the statute. We therefore vacate the judgment below and remand the case for further proceedings consistent with this opinion.
It is so ordered.