Between September 1977 and April 1978 seven elderly women were raped and strangled in their own homes in Columbus, Georgia, most of them in the Wynnton neighborhood, most of them with their own stockings. The police had no suspect for six years. Then a pistol stolen from a Wynnton house in 1977 surfaced in Michigan, registered to a cousin of Carlton Gary, and on May 3, 1984, Gary was arrested for burglary. His fingerprints matched prints from four of the murder scenes. He told detectives he had been inside seven of the houses but had only been the burglar; someone else, he said, had done the killing. In August 1986 a Muscogee County jury chosen in Spalding County convicted him of the murders, rapes and burglaries of Florence Scheible, Martha Thurmond and Kathleen Woodruff and sentenced him to death three times over.
The first of the three opinions here is the Georgia Supreme Court’s, from March 1990, and it is short. Presiding Justice Smith disposes of the whole appeal in about two thousand words, noting that Gary did not even contest the sufficiency of the evidence, and that in Albany, New York, in 1970 he had likewise blamed another man for a rape and murder his fingerprints tied him to. The two federal opinions, both written by Judge Gerald Tjoflat of the Eleventh Circuit, are long. The 2009 opinion affirms the denial of his habeas petition after “at least ten separate” reviews of the case, and works through his claims one by one: that the trial court refused his lawyer a private hearing on the funds he needed, that the lawyer who took the case without fee was ineffective, and that the prosecution hid evidence, among it a bite mark cast taken from the body of Janet Cofer and the shifting statements of a surviving victim who identified him.
The 2012 opinion is about money and jurisdiction rather than guilt, and it is where the DNA enters. Georgia had set an execution date for December 2009; the state supreme court stayed it so that Gary could seek DNA testing of the surviving evidence, and the Muscogee County court ordered the tests. His federally appointed lawyers then asked the federal court to pay for their work on that motion and for a DNA expert, and the Eleventh Circuit’s majority held that the statute did not reach a state court motion of that kind, over a dissent by Judge Wilson. What the testing showed is not in these pages. Gary’s execution went ahead on the evening of March 15, 2018, at the Georgia Diagnostic and Classification Prison in Jackson, three and a half hours late while his last motions were refused; he made no final statement, and he maintained to the end that he was not the Stocking Strangler.
The courts do not agree with each other about the count. The 1990 opinion says eight women were raped between September 1977 and April 1978, one of whom survived; the 2009 opinion speaks of “three of the nine victims.” Neither number is the archive’s, and we have not reconciled them. The Georgia court also calls one of the three murder victims Ruth Schieble; she was Florence Scheible, and the 2012 opinion spells the neighborhood Wynton where the city spells it Wynnton and once writes Jena Dimenstein for Jean. Those are the courts’ errors and they stay in the text. Everything the opinions say about what Gary told the police is taken from the officers’ testimony as the courts summarized it, not from any transcript.
Gary blamed three other men over the years, and none of them was ever convicted of anything he accused them of: the man he named for the 1970 Albany murder, who was tried and acquitted; the man he said carried out a 1977 Syracuse rape while he kept watch; and the man he told Columbus detectives had committed the stranglings while he burgled. All three are reduced to initials here, because an acquitted man and two men who were never charged should not carry a killer’s accusation under their full names on a page like this. The two women who survived attacks and gave evidence, one of whom identified Gary and one of whom never could, are initialled as well, and so are the widow and stepdaughters of the county coroner, who were subpoenaed in 2003 over a missing bite mark cast. The murdered women, the lawyers, the judges, the detectives and the forensic witnesses keep their names.
These are official reports of American appellate courts, free of copyright. The Georgia opinion and the two federal ones reached the Caselaw Access Project as reasonably clean text, but not perfect: the 2012 opinion has “findfs” where the printed report reads finds, and the typesetter’s line-end hyphens sat inside forty-nine words (Musco-gee, Weg-el, Kil-gore), which we closed where the unbroken word appears elsewhere in the same file. Nothing else has been corrected. The seventy-five footnotes of the two federal opinions are printed after each opinion, under their own heading, in the order the court numbered them.
S89P0171.
GARY v. THE STATE.
(389 SE2d 218)
[OPINION BY Smith, Presiding Justice. type=majority]
Smith, Presiding Justice.
Carlton Gary was convicted by a jury in Muscogee County on three counts each of murder, rape and burglary. He was sentenced to death on each of the murder counts.
1. Between September 11, 1977 and April 19, 1978, eight elderly women were raped in their homes. One woman survived; the other seven were strangled to death. Seven of the victims lived in the Wynton area of Columbus. One victim lived two miles away, but had attended choir practice in Wynton the evening she was murdered.
Police had no viable suspects in the case until 1984, when a gun stolen from the Wynton area in 1977 was discovered in Michigan — a consequence of that state’s gun registration laws — in the possession of Carlton Gary’s cousin. After further investigation, Gary was arrested for burglary on May 3, 1984. His fingerprints matched those taken from the scenes of four of the murders.
Gary admitted to law enforcement officers that he was present at seven of the crime scenes (the eighth he could not remember), but claimed he was only a burglar. He blamed the murders on another. Further investigation revealed that in other instances in New York and in South Carolina, Gary had committed violent crimes and blamed others. For example, he raped and murdered an 89-year-old woman in her home in Albany, New York in 1970. His fingerprints were found at the crime scene. Gary claimed one J.M. committed the murder. M., however, was acquitted by a jury. In another New York crime involving rape and burglary, Gary admitted only to being a “lookout” and blamed the rape on another. In all these cases, no evidence other than Gary’s own statements and testimony supported his claim that another person was involved in the crime with him.
The defendant does not question the sufficiency of the evidence, and we find that it supports the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Trial counsel, August F. Siemon, represented the defendant pro bono. His first move upon entering the case was to secure the dismissal of the defendant’s court-appointed attorneys. Later, he sought additional court-appointed counsel. The trial court denied the motion after Siemon stated: “There is no question in my mind that I have the personal resources to provide representation to [the defendant].” We note that the defendant was represented by two additional attorneys (acting pro bono) during much of the pretrial proceedings.
The defendant also sought funds for forensic and investigative assistance. These requests for funds were denied.
During the pretrial proceedings and at the outset of the trial, attorney Siemon stated to the trial court that, because of the lack of funds and time, he was not prepared to try the case. The case proceeded to trial over his objection. When the case came to this court on appeal, we exercised our discretion under the Unified Appeal Procedure to remand the case to the trial court for a hearing to determine whether, for any reason, including lack of funds, the defendant was denied effective assistance of counsel. See Rule IV (B) (1) of the UAP, Ga. Court & Bar Rules at 9-15.
On remand, the trial court appointed two attorneys to represent the defendant on the question of effectiveness of trial counsel. However, the defendant obtained the services of attorney Frank L. Derrickson, who, as had trial counsel, represented the defendant pro bono. The issue came on for hearing. The defendant refused to waive his attorney-client privilege as to any of his three trial attorneys, and none of them testified on behalf of the defendant. Lead trial attorney Siemon was called as a witness by the state; however, the defendant invoked his attorney-client privilege to prevent his attorney from answering any questions about tactical decisions he made while representing the defendant.
(a) The defendant contends the court erred by refusing to dismiss his two court-appointed attorneys after attorney Derrickson entered the case on remand. However, although these two attorneys were not dismissed, they did not actively participate in, or interfere with, the proceedings on remand. Hence, there was no denial of the defendant’s right to choose his own counsel. Cf. McKaskle v. Wiggins, 465 U. S. 168 (104 SC 944, 79 LE2d 122) (1984) (court may appoint standby counsel for pro se litigant over his objection, so long as standby counsel’s role is suitably limited).
(b) The defendant contends he was denied effective assistance of counsel at trial. The trial court found as follows:
In this case ample opportunity was given this defendant through a hearing before this court with counsel of his own choosing (and additional counsel, if he chose so to avail himself) to urge any and all possible errors affecting the trial or prejudicing the defendant.... This defendant refused to accept the opportunities provided him. For reasons probably known only to itself the State elected to go further than even the defendant in the course of the hearing and attempted to elicit from defense counsel, August F. Siemon, reasons for various avenues of conduct. To each and every material question the defendant asserted his privilege not to have his counsel testify. This is true even though the defendant was made inescapably aware by this court that this was his opportunity to have these possible issues litigated. It is therefore the finding of this court that as to those issues addressed during the hearings on remand that the defendant knowingly, intelligently and voluntarily waived those issues after having been repeatedly advised by the court that his conduct would amount to such a waiver. Therefore these issues are resolved adversely to Carlton Gary.
A defendant cannot be forced to litigate an issue. Cf. Morrison v. State, 258 Ga. 683 (3) (373 SE2d 506) (1988). The defendant was given an opportunity to prove he was denied effective assistance of counsel. He declined to do so. We agree with the trial court that he knowingly, voluntarily and intelligently has waived any issue of effectiveness of trial counsel.
(c) In his post-remand brief, the defendant continues to claim, as he did in his original appellate brief, that the trial court’s refusal (prior to the original trial) to appoint additional counsel or to provide funds for forensic and investigative assistance was an abuse of discretion, see Isaacs v. State, 259 Ga. 717 (13) (a) (386 SE2d 316) (1989), and that he was penalized improperly for exercising his right to retain his own attorney pro bono.
The defendant was given the opportunity to prove that the denial of funds for legal, investigative, and forensic assistance prejudiced his defense; i.e., that because of the trial court’s denial of funds, attorney Siemon could not effectively represent his client. The defendant waived that opportunity, and we need not further address his contentions in this regard.
3. The defendant contends the conditions of his solitary confinement while awaiting trial had an adverse impact on his ability to stand trial. However, not only has this issue been litigated — and relief denied — in a pretrial habeas corpus petition filed by the defendant on this issue, but also in a special trial to determine his competence to stand trial. The special jury found him competent to stand trial. See OCGA § 17-7-130.
While awaiting his trial, the defendant was held in “administrative segregation” for his own protection. He was in a private cell with a commode, a lavatory, a bunk with mattress, blanket and pillow, a skylight, a television, a radio, and reading materials. He was given extensive visitation privileges. The record does not support the defendant’s claim of unconstitutionally harsh conditions of confinement. The special jury’s finding that he was competent to stand trial is supported by the evidence.
4. The defendant was caught in an escape attempt in December of 1985. Afterward, he allegedly began behaving in a “bizarre” manner. On March 10, 1986, the day his trial was scheduled to begin, he filed a special plea of incompetence. He was examined by Doctor. Jerald Lower, who concluded the defendant was deliberately feigning mental disorder. The defendant claimed he was suffering from sensory deprivation disorder; however, expert testimony was presented at the competence hearing that such condition is associated only with complete sensory deprivation not at all consistent with the condition of the defendant’s incarceration.
The defendant contends he was denied due process by the court’s refusal to grant him funds for examination by an independent mental health expert. See Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985). We disagree. Nothing before the court reasonably indicated that the defendant’s sanity would be a significant factor at trial. The denial of funds was not error.
5. The percentage of black citizens aged 18 and over in Muscogee County is 31 percent. The percentage of black citizens aged 18 and over in Spalding County, to which venue was changed (see fn. 1, supra), is 24.7 percent. The defendant contends the selection of new venue in Spalding County was racially motivated. The circumstances of this case do not establish prima facie that racial discrimination motivated the trial court’s decision to change venue to Spalding County.
6. There was no abuse of discretion in the conduct of voir dire. Curry v. State, 255 Ga. 215 (336 SE2d 762) (1985).
7. Before trial, the defendant moved to recuse Judge Followill on the ground that his ruling on the motion for change of venue showed he was guilty of racial prejudice. Judge Morgan presided over the hearing on the motion to recuse, and properly denied the motion. United States v. Meester, 762 F2d 867, 884-85 (11th Cir. 1985). The defendant now contends Judge Followill should have been recused because he was a party litigant represented by counsel at the hearing on the motion to recuse. This contention was not raised until more than a year after the hearing and is not timely. Romine v. State, 251 Ga. 208 (2) (305 SE2d 93) (1983). Compare Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1987).
8. The defendant was given ample notice of the date of his competency trial.
9. The only surviving victim of the defendant’s strangulation attacks testified at trial and identified him as her assailant. The defendant was not entitled to a hearing outside the presence of the jury to determine the admissibility of the testimony of this witness, Watkins v. Sowders, 449 U. S. 341 (101 SC 654, 66 LE2d 549) (1981), and her testimony was admitted in evidence properly. Pruitt v. State, 258 Ga. 583 (4) (373 SE2d 192) (1988).
10. There was no error in the conduct of the Jackson-Denno hearing or in the admission in evidence of the defendant’s pretrial statements. See, e.g., Parks v. State, 254 Ga. 403 (1) (330 SE2d 686) (1985).
11. As noted in Division 1, supra, extrinsic transactions demonstrating the defendant’s modus operandi were admitted in evidence. In view of the relevant similarities between the extrinsic transactions and the crimes on trial, the court did not err by allowing their admission in evidence. Hamilton v. State, 255 Ga. 468, 471 (339 SE2d 707) (1986).
12. The defendant was not, as he claims, denied the right to present mitigating evidence by the trial court’s rulings on funds and travel expenses. Many potential witnesses who had known the defendant during his life were either present at trial or were readily available. The defendant can name no one whose testimony he was unable to secure as a consequence of any ruling by the trial court.
13. The jury found that the three offenses of murder were committed while the offender was engaged in the commission of the offenses of rape and burglary. See OCGA § 17-10-30 (b) (2). The evidence supports these findings. OCGA § 17-10-35 (c) (2).
14. After reviewing the record, including the proceedings on remand, we conclude the sentences of death were not imposed under the influence of passion, prejudice, or other arbitrary factor. OCGA § 17-10-35 (c) (1). The sentences of death are not excessive or disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the appendix support the imposition of death sentences in this case.
Judgment affirmed.
Clarke, C. J., Weltner, Bell, Benham, Fletcher, JJ., and Judge Charles A. Wofford concur. Hunt, J., disqualified.
Decided March 6, 1990 —
Reconsideration denied March 28, 1990.
August F. Siemon III, Frank L. Derrickson, for appellant.
Douglas C. Pullen, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Joseph L. Chambers, for appellee.
Appendix.
Curry v. State, 255 Ga. 215 (336 SE2d 762) (1985); Ross v. State, 254 Ga. 22 (326 SE2d 194) (1985); Devier v. State, 253 Ga. 604 (323 SE2d 150) (1984); Allen v. State, 253 Ga. 390 (321 SE2d 710) (1984); Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984); Brown v. State, 250 Ga. 66 (295 SE2d 727) (1982); Messer v. State, 247 Ga. 316 (276 SE2d 15) (1981); Justus v. State, 247 Ga. 276 (276 SE2d 242) (1981); Green v. State, 246 Ga. 598 (272 SE2d 475) (1980); Cape v. State, 246 Ga. 520 (272 SE2d 487) (1980); Thomas v. State, 245 Ga. 688 (266 SE2d 499) (1980); Gates v. State, 244 Ga. 587 (261 SE2d 349) (1979); Brooks v. State, 244 Ga. 574 (261 SE2d 379) (1979); Collins v. State, 243 Ga. 291 (253 SE2d 729) (1979); Spraggins v. State, 243 Ga. 73 (252 SE2d 620) (1979); Davis v. State, 242 Ga. 901 (252 SE2d 443) (1979); Johnson v. State, 242 Ga. 649 (250 SE2d 394) (1978); Moore v. State, 240 Ga. 807 (243 SE2d 1) (1978); Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976); McCorquodale v. State, 233 Ga. 369 (211 SE2d 577). (1974).
The defendant was arrested on May 3, 1984. He was indicted the next day. After numerous pretrial hearings, and a change of venue, the case was tried in Muscogee County by a jury that had been selected in Spalding County. The trial began on August 11, 1986 and concluded on August 27, 1986. A motion for new trial was filed on September 25, 1986 and was denied on October 18, 1986. The case came to this court for review. We remanded the case to the trial court for a hearing on the question of ineffectiveness of counsel. The case was redocketed in this court on June 22, 1989, and the case was argued orally on September 12. 1989.
Carlton Michael GARY, Petitioner-Appellant, v. Hilton HALL, Respondent-Appellee.
No. 04-15535.
United States Court of Appeals, Eleventh Circuit.
Feb. 12, 2009.
Carlton Michael Gary, GA Diag & Class Pris-Perm, Jackson, GA, John R. Martin (Court-Appointed), Martin Brothers, P.C., Atlanta, Ga, Michael K. McIntyre (Court-Appointed), Atlanta, GA, Harriet Victoria Smith (Court-Appointed), Michael Kennedy McIntyre & Associates, Atlanta, GA, for Gary.
Susan V. Boleyn, State Law Dept., Atlanta, GA, for Hall
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
[OPINION BY TJOFLAT, Circuit Judge: type=majority]
TJOFLAT, Circuit Judge:
Twenty-two years ago, in the Superior Court of Muscogee County, Georgia, twelve jurors unanimously found Carlton Gary guilty of three counts of murder, rape, and burglary. As a result of the murder convictions, Gary was sentenced to death. Since then, he has pursued every possible legal avenue available to him to obtain a new trial. In all, his convictions and death sentences have been reviewed on at least ten separate occasions. In each instance, he has been denied relief. The review here is of the United States District Court for the Middle District of Georgia’s denial of his petition for a writ of habeas corpus. We find no merit in the issues presented and therefore affirm.
I.
A.
In its order denying habeas corpus relief, the district court painstakingly parsed the transcript of Gary’s trial and provided a detailed summary of the facts giving rise to Gary’s arrest and convictions. Gary v. Schofield, 336 F.Supp.2d 1337 (M.D.Ga.2004). We excerpt the relevant factual portion of the court’s order:
Between the fall of 1977 and spring of 1978, terror gripped the historic Wynnton neighborhood in Columbus, Georgia. Targeting elderly white women, an assailant sexually assaulted nine women, killing seven of them and leaving stockings around their necks as his calling card. Labeled the “stocking strangler” by the local news media, the assailant suddenly ceased his activities in the Wynnton area in 1978 and eluded authorities for six years.
These crimes remained unsolved until 1984 when a pistol that was stolen from a home in the Wynnton area in October 1977 was linked to [Gary]. [Gary] was arrested on May 3, 1984 for this burglary. After acknowledging his Miranda rights, [Gary] confessed that he was present at the burglary and that he was either present at, or had knowledge of, eight of the nine 1977-78 Wynnton area rapes and murders. [Gary] stated that he burglarized these women’s homes while an individual named M.C. committed the rapes and murders. The authorities found no corroborating evidence linking C. to the crimes.
[Gary]’s fingerprints were ultimately found to match the latent prints found at four of the crime scenes. Blood evidence and hair samples taken from the crime scenes were inconclusive — they did not establish [Gary] as the perpetrator, nor did they exclude [Gary],
An investigation into [Gary]’s background revealed his connection to similar crimes in the past. Specifically, on April 14, 1970, the body of eighty-five year old Nellie Farmer was found in her residence in Albany, New York. She had been raped, strangled, and her body was covered. A fingerprint taken at the scene matched [Gary’s]. When arrested and confronted with this evidence, [Gary] claimed that he was at the crime scene, but an individual by the name of J.L.M. actually raped and killed Mrs. Farmer. Mr. M. was acquitted of these charges.
On January 2, 1977, fifty-five year old J.F. was attacked and raped during a burglary of her home in Syracuse, New York. One of the items taken during the burglary was her watch. When [Gary] was taken into custody two days later, he had the watch in his pocket. [Gary] confessed to being the “lookout” for the F. burglary. He claimed that an individual named D.H. committed the attack and rape. Mr. H. was not convicted for the crimes.
Regarding the Columbus “stocking strangler” crimes, [Gary] was indicted for raping, murdering, and burglarizing the homes of three of the nine victims— Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. At trial, the Prosecution introduced evidence of the attacks on the other “stocking strangler” victims, claiming that they showed a similar pattern and were also committed by [Gary]. The evidence presented by the Prosecution to show a similar pattern included the following. All of the victims were elderly white women between the ages of 55 and 89. Each of the victims lived alone. In each crime, the assailant broke into the woman’s home and burglarized her residence. With the exception of one, all of the crimes happened at night. All of the elderly women were sexually assaulted. All of the attacks involved ligature strangulation, usually with the victim’s stockings or pantyhose. With the exception of only one attack, all of the attacks occurred in the Wynnton area of Columbus, Georgia. Every deceased victim had been either partially or totally covered after the attack.
The evidence at trial showed that Mrs. Schieble was raped, beaten, and strangled to death with a stocking on October 21, 1977. She was eighty-nine years old at the time, legally blind, and could walk only with the aid of a walker. Mrs. Schieble’s son and his wife discovered her lifeless, covered body on October 21, 1977.
Martha Thurmond’s body was discovered on October 25, 1977. Her body was covered by a pillow, blankets, and sheets. The evidence showed that Mrs. Thurmond was sexually assaulted, beaten, and strangled with a stocking.
On December 28, 1977, the body of seventy-four year old Kathleen Woodruff was discovered, partially covered, and lying on her bed. Mrs. Woodruff had been raped and strangled with a scarf. The similar crimes evidence showed that G.M. was attacked on September 11, 1977. She was raped and severely beaten. Knotted stockings, similar to the ones used to strangle the other victims, were found at the scene. Mrs. M. survived the attack and identified [Gary] as her assailant.
The body of fifty-eight year old Mary “Fern” Jackson was discovered on September 16, 1977. Her body was covered and she had been beaten and raped. Mrs. Jackson was strangled to death with a stocking and a sash from a dressing gown.
Seventy-one year old Jean Dimenstein was raped and strangled to death with a stocking in her home on September 24, 1977. Her body was covered with sheets and a pillow.
On February 11, 1978, police responded to a call and found Mrs. R.S. sitting on the edge of her bed with a stocking tied around her neck. Mrs. S. never identified [Gary] as her assailant. Although she survived the February 11, 1978 assault, she died before [Gary] was charged and tried.
On February 12, 1978, the body of seventy-eight year old Mildred Borom was found lying in a hallway of her home. She was lying on her back with her face covered. Mrs. Borom had been strangled with a Venetian blind cord. She also had been raped.
On April 19, 1978, sixty-one year old Janet Cofer’s body was found lying in her bed covered with linen and with a pillow over her face. Mrs. Cofer had been raped and strangled with a stocking. Although Mrs. Cofer did not reside in the Wynnton area of Columbus (as all of the other victims did), she had attended choir practice at the Wynnton Methodist Church on the evening of her murder.
Id. at 1341-43 (internal citations and footnotes omitted).
B.
Gary was indicted in Muscogee County on May 4, 1984 and charged with three counts of malice murder, three counts of rape, and three counts of burglary. The alleged victims were Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. On May 9, Judge John Land of the Muscogee County Superior Court found Gary to be indigent and appointed two lawyers, William Kirby and Stephen Hyles, to represent him.
On June 20, defense counsel filed several motions. They requested funds to hire an investigator and to travel to interview potential witnesses; they asked the court to have Gary evaluated by psychiatric and psychological experts for the purpose of determining mental competence; and they sought the production of all physical evidence in the State’s possession, including fingerprints, hair, blood, and bodily fluids obtained from the scene of some of the murders. They also sought the reports of experts employed by the State to examine such evidence and requested funds to hire independent experts to examine the evidence. In addition, they sought complete access to the State’s investigative files, including statements Gary made to the police, a list of the witnesses who appeared before the grand jury, and any exculpatory Brady material. They also moved for a change of venue and the severance of the indictment counts, so that the murder and rape counts would be tried separately from the burglary counts. Lastly, counsel requested a preliminary hearing for the purpose of narrowing the issues for trial.
On July 17, Judge Land convened a hearing on defense counsel’s motions. After hearing from the parties, the court granted all of the motions except the motion for funds to hire independent experts to examine the State’s physical evidence and the motion for a psychiatric and psychological evaluation. As to those two motions, the court deferred its ruling. At the end of the hearing, the court scheduled the trial for December 3, 1984 in Columbus.
On August 28, August F. Siemon, an Atlanta lawyer, filed a notice of appearance, representing that Gary had retained him as defense counsel. He attached a statement from Gary indicating that he was Gary’s counsel of choice, with the authority to retain additional counsel as necessary. Siemon withdrew Kirby and Hyles’s requests for a severance and for a change of venue and requested that the court withhold ruling on the motions for a psychiatric and psychological evaluation and for funds to hire experts. On August 29, after determining that Siemon would be representing Gary as independently retained counsel, Judge Land entered an order discharging Kirby and Hyles as defense counsel. The order instructed Kirby and Hyles to make their investigative files and work product available to Siemon and gave Siemon thirty days to review the pending motions.
By mid-September, Siemon decided that he needed the services of co-counsel and an investigator. He moved the court to authorize him to hire an investigator and to reappoint Kirby to act as co-counsel. At a hearing on the motion, Siemon informed the court that he had handled between 50 and 60 capital cases in the past four or five years, as lead or associate counsel, and that he had handled 400 cases during his first two years as a public defender from 1977 to 1978. Despite this experience, he said that he would be unable to handle Gary’s case alone. Siemon told the court that he was representing Gary pro bono and lacked funds to associate another lawyer or pay an investigator. In the next breath, however, he represented that he had the resources to provide Gary full representation, stating, “[tjhere’s no question in my mind that I have the personal resources to provide representation to [the defendant].” Transcript of Proceedings, September 25, 1984, at 44. At this point, Judge Land explained Gary’s options to Gary and Siemon:
It’s recognized by all the parties here I’m sure that there are three alternatives that this defendant has been faced with. One is to represent himself. Obviously he has not chosen that route. Two, to plead indigency and have counsel appointed. He did plead indigency, the Court found that he was indigent, and appointed counsel to represent him. Thirdly, which is superior to the other two, is to procure counsel of his choice ... And so I take the position in this instance at this time that Mr. Gary has exercised the third alternative of procuring counsel of his choice and certainly the Federal Courts, the United States Supreme Court, says he has that right. He has exercised it.
Now the court originally named Mr. Kirby as lead counsel in this case because of his impressive qualifications and experience ... Mr. Siemon, on behalf of Mr. Gary, you asked that he be relieved as lead counsel and that you be appointed lead counsel. And the Court has allowed that....
You have pointed out to the Court in your initial urging of this matter, Mr. Siemon, that the defendant has no right — an indigent defendant has no right to an attorney of his choosing.... I cannot at this time allow [Gary] to name indigent appointed counsel of his choice and I decline to reappoint Mr. Kirby in this case.
Id. at 64-66. Siemon then inquired again about funding for an investigator. Judge Land denied his request without prejudice. See id. at 67.
Siemon continued to seek co-counsel, and on October 11, Bruce S. Harvey, an Atlanta attorney, filed a notice of appearance. On December 10, Siemon moved the court to appoint Gary Parker, a Columbus attorney, as co-counsel. Judge Land denied the motion, and Parker filed a notice of appearance as co-counsel. Once assembled, this defense team of three lawyers filed scores of pretrial motions, some of which dealt with the disclosures the State had made pursuant to the court orders Kirby and Hyles had obtained. Included in counsel’s motions were requests for funds to hire experts, including a forensic serologist; to pay for Siemon’s trips out of state to interview witnesses; and to employ an investigator. As to each request for funds, Judge Land asked Siemon to identify the experts he wished to employ and the purpose of their employment, and, on each occasion, Siemon said he would not disclose the information unless the court permitted him to do so ex parte and in camera. The court denied his request to proceed ex parte and in camera; Siemon did not disclose the information; and the court denied his requests for funds.
As they were preparing the case for trial, Siemon, Harvey, and Parker made an appointment to visit the Georgia Bureau of Investigation (“GBI”) Crime Lab for the purpose of interviewing the Crime Lab serologist and other experts who had examined the physical evidence the police had uncovered at the crime scenes: serological fluid (blood and semen), fingerprints, and hair. The prosecution had provided the defense with the official Crime Lab reports of these examinations, signed by the Crime Lab’s Director, but not with the notes the experts had made while performing the examinations. The notes would have been available to defense counsel, but counsel did not request them. For reasons not revealed by the record, defense counsel canceled their appointment with the GBI Crime Lab.
On February 8, 1985, Siemon filed a motion to recuse Judge Land. The motion stated that Judge Land should be removed because of “extra judicial knowledge and bias,” including his knowledge of certain facts and circumstances expected to be introduced as evidence. Judge Land voluntarily recused, and on May 13, Judge Bell assigned Judge E. Mullins Whisnant to preside over the case. Nine days later, on May 22, Siemon filed a motion to recuse Judge Whisnant, arguing that the judge had served as the Muscogee County District Attorney in the Chattahoochee Judicial Circuit while the “Stocking Strangler” case was being investigated. Judge Whisnant voluntarily recused on May 30, and the same day, Judge Bell appointed Judge Kenneth Followill of the Muscogee County Superior Court to preside over the case.
At some point during the first five months of 1985, Siemon petitioned the Muscogee County Superior Court for a writ of habeas corpus challenging Gary’s conditions of confinement pending trial. The petition, directed to the Muscogee County Sheriff, Gene Hodge, alleged that Gary’s conditions of confinement were cruel and unusual and asked the court to order the Sheriff to provide Gary with more humane accommodations or to release him from custody. At a one day hearing on the petition, the Sheriff took the position that the writ of habeas corpus was not the appropriate remedy for the relief Gary was seeking. The record does not indicate the court’s disposition of the petition, but we assume that the court denied the writ because Gary remained in the Muscogee County Jail for the duration of his prosecution.
On July 3, Judge Followill heard Gary’s motion for funding for an investigator. At the hearing, the court learned that defense counsel had only interviewed “approximately 10 to 15 witnesses” in the previous ten months. Respondent’s Exhibit No. 26 at 64. In light of this information, Judge Followill expressed skepticism that defense counsel would make good use of public funds. He stated to Siemon, Harvey, and Parker: “[ejvidence that you have only talked to 10 or 15 witnesses in this case in 10 months doesn’t go a long way towards impressing me with how you expend your time, and I’m wondering how you are going to expend this money.” He continued,
I presume that with the experience that you lawyers have and have described to me that you normally don’t place a witness on the stand to testify until you’ve talked to him yourself ... you are going to have to talk to these people anyway and why in the world have you not talked to more than 15 of them up until now? That really takes me back.
Id. at 68, 78.
On October 7, 1985, at another hearing on defense motions, Judge Followill revisited defense counsel’s request for funds for an investigator, once again asking Siemon, Harvey, and Parker how many witnesses they had interviewed. Siemon responded that in the three months that had elapsed since the July 3 hearing, they had interviewed no witnesses. Respondent’s Exhibit No. 27, at 133-34. In response, the judge said
[Y]ou have taken on the duty to represent your client and you haven’t interviewed but 10 or 15 witnesses when you’ve been supplied all the names all this time. How are you going to discover the facts of this case? What does it take in the way of funding while you are in Columbus, Georgia, to call a few witnesses, go by to see them and talk to them? You’ve got four lawyers involved in this case. Three of you have made it to Court even if it’s been just for the purpose of presenting these motions ... and here you are sitting in this courtroom telling me that you haven’t done the most basic thing that any lawyer would do....
I know Mr. Parker has a law practice to carry on and I know that you all have other things you’ve got to do too; but as far as this Court is concerned, you don’t have a more important case right now than protecting this man’s life and liberty-
id at 137-38, 141.
Judge Followill then turned to Gary over Harvey’s objection: “Mr. Gary, you’ve heard this team of lawyers representing you say that they have not interviewed anymore [sic] witnesses than they had back in August.... [A]re you satisfied that you are receiving the proper advice and representation in this case?” Id. at 143. Gary did not respond. The judge put the question to him two more times, with no response.
At this point, after conferring privately with Gary and his co-counsel, Parker moved the court for permission to withdraw, citing the court’s refusal to provide funding as the basis for his motion. The court denied the motion on the ground that it was improperly presented. On December 18, Parker moved the court to withdraw with his client’s consent, and the court granted the motion.
On February 6,1986, Judge Followill set March 10, 1986, as Gary’s trial date. On February 18, he granted Siemon’s motion for disclosure of Brady material, ordering an in camera inspection of the prosecution’s file, consisting of some 12,000 pages. The court reviewed the file and ordered the disclosure of any potentially exculpatory material.
C.
The case was called for trial on March 10, as scheduled. Three hundred venire-persons had been summoned to the Muscogee County Courthouse in Columbus for jury duty, and the prosecution had subpoenaed 150 witnesses. Before Judge Followill assumed the bench, he was informed that Gary, who was being detained in the Muscogee County Jail, refused to get dressed and come to court. Judge Followill informed Siemon and Harvey, and they went to the jail. They returned to court and filed a “Notice of Intention to Raise Issue of Mental Incompetency” and a “Special Plea of Incompetency.” Accompanying the special plea was an affidavit by Harvey stating that he had been observing Gary’s physical and mental condition in a “steady decline and debilitation.”
Judge Followill and counsel immediately retired to chambers to consider these filings. At that time, Harvey supplemented what he had stated in the affidavit. In light of Harvey’s statements, the court declared a two-day recess. On March 12, the court and counsel reassembled in chambers. Siemon moved the court to have Gary examined by an independent psychiatric expert who would “assist the defense.” Judge Followill, concluding that it was the court’s responsibility to determine whether Gary was competent to stand trial, denied Siemon’s motion and instead ordered that the Georgia Department of Human Resources “conduct a complete physical, psychological, neurological, and psychiatric examination of the defendant” with respect to his competency to stand trial and his mental competency at the time of the alleged crimes.
Gary was evaluated by the Forensic Services Division of Central State Hospital in Milledgeville on March 28. On admission to the hospital, Gary met with the Director of Admissions and asserted his right to consult with his lawyer. The Director provided Gary with a telephone, and Gary called Siemon. They spoke for fifteen minutes. After that, Gary was taken to the Forensic Services Division’s psychiatrist and psychologist assigned to the case. During the five days he spent at the hospital, Gary refused to speak to them or otherwise cooperate in the evaluation they had been ordered to perform. But he did mingle with some of the patients at the hospital, especially during the recreation periods, and talk to members of the hospital staff.
Judge Followill scheduled the trial on Gary’s special plea of mental incompetency for April 21, in Columbus. On April 11, Siemon filed a motion in limine to prevent the Forensic Services Division’s psychiatrist and psychologist from testifying as to Gary’s competency to stand trial. Siemon argued that unless the court provided for an “independent” evaluation, rather than one performed by the State, they should be barred from testifying. The court denied his motion.
The competency trial commenced on schedule with jury selection, which took one day to complete. The trial, itself, consumed the following four days. Five witnesses testified: the Director of Admissions of the Central State Hospital, the psychiatrist and psychologist who undertook to evaluate Gary, Sheriff Hodge, and Gary Parker. Siemon called Parker and Hodge to the stand to establish Gary’s incompetency. Parker testified that Gary’s ability to communicate with defense counsel had been steadily declining, such that it was extremely difficult to prepare a defense. The Sheriff testified that Gary had been confined alone for two years, without exercise, and had refused to eat for prolonged periods of time.
The Director of Admissions and the psychiatrist and psychologist testified as court witnesses. The two experts acknowledged that Gary had refused to cooperate with them. The psychologist said that it was difficult to determine whether Gary was malingering or whether he was manifesting symptoms of mental illness; he therefore rendered no opinion as to Gary’s competence to stand trial. The psychiatrist opined, based on forty years of experience, that Gary was not manifesting a mental illness and thus was competent to stand trial. The Director of Admissions said that he saw nothing abnormal in Gary’s behavior, and that Gary was fully cognizant of his rights. On April 28, at the conclusion of the competency trial, the jury found against Gary on his special plea of mental incompetency.
On June 9, the .trial commenced in Columbus with jury selection. One day later, Siemon filed a motion for the recusal of Judge Followill because he had submitted to an interview by a reporter with the Columbus Ledger & Enquirer in which he stated that “there is no provision in law” requiring that public funds be provided to privately retained attorneys in a criminal case. While this motion was pending, Siemon moved the court for a change of venue. On July 2, the court granted the venue motion in part and ordered that the jury would be selected in Griffin, Georgia, from a Spalding County venire, but the trial would take place in Columbus. The jury would be transported from Griffin to Columbus and sequestered in a Columbus hotel for the duration of the trial.
On July 7, three weeks before the trial was to begin, Harvey moved the court to permit him to withdraw or, alternatively, to appoint him to represent Gary. The same day, Siemon filed a second motion for the recusal of Judge Followill, alleging that Judge Followill, by “intentionally selecting] Spalding County so as to minimize black participation in the trial of the accused,” had purposefully “injected racism into the jury selection procedures in this case.” Judge Bell, the administrative judge, ordered that Siemon’s two recusal motions be heard on July 21 before Judge C. Cloud Morgan of the Superior Court of the Macon Judicial Circuit. On July 24, after hearing three hours of argument, Judge Morgan, having found no merit in Siemon’s motions, denied them. Meanwhile, Judge Followill granted Harvey’s motion to withdraw; this left Siemon as sole defense counsel.
On August 11, the trial began, and the State opened its case in chief. The state presented a plethora of circumstantial evidence that identified Gary as the perpetrator of the charged crimes, including: (a) Gary’s confession to the police that he was present at, or had knowledge of, eight of the nine rape/murder scenes; (b) Gary’s latent fingerprints at four of these locations; (c) blood evidence and hair samples found at the victims’ locations that included Gary in the class of potential perpetrators; (d) eye-witness testimony of G.M., who identified Gary as the man who had attacked her; (e) pervasive modus operandi and identification-type evidence; (f) the lack of evidence supporting Gary’s claimed alibi — that although Gary was present when the murders occurred, M.C., a childhood friend, actually committed them; (g) compelling evidence that only one person committed each rape/murder; and (h) uncontroverted evidence that the rape/murders were committed by the same person. The guilt phase of the trial ended on August 26, 1986, and the jury found Gary guilty as charged.
The penalty phase of the trial began and ended the next day, August 27. The prosecution presented documentary evidence that Gary had been convicted of a felony on three occasions in 1979 and rested its case. Siemon rested Gary’s case without calling any witnesses or putting on any evidence. After three hours of deliberation, the jury found that, with respect to each of the three murder counts alleged in the indictment, there were two “aggravating circumstances.” The jury returned verdicts calling for the death sentence, and the court, bound by the jury’s verdicts, imposed three death sentences.
D.
On September 25, 1986, Gary moved the court for a new trial. The court, after hearing argument of counsel, denied his motion on October 18, 1986. Gary, represented by Siemon, appealed the court’s judgment, and the denial of his motion for a new trial, to the Supreme Court of Georgia. In his brief to the court, Siemon asserted eighteen enumerations of error. In the second enumeration, Siemon argued that the trial court refused to give him an ex parte hearing on the necessity of funds, contrary to the Supreme Court’s holding in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Siemon continued,
Although Appellant was allowed to make a proffer on why he needed funds and indeed made such a proffer ... Ake recognizes that it violates due process and equal protection to require an indigent to reveal his defenses and strategies to the State in order to gain the tools of an adequate defense. Appellant was not prepared to make a showing of necessity ex parte and so the record in this case is incomplete on the necessity of funds.
Respondent’s Exhibit No. 65, at 13 (citations omitted).
In the third enumeration, Siemon made the related claim that by failing to grant funds, the trial court denied Gary his rights to due process, compulsory process, confrontation, and a reliable sentencing hearing. He stated,
[a]ppellant’s proffer on the funds issue, although ... incomplete, show[ed] the necessity for funding.... As Appellant argued to the trial court, it is a logical proposition that without funds he would be unable to travel to different states to interview witnesses to satisfy the requirements of confrontation or the out of state witness subpoena rules.
Id. at 14-15.
On June 26, 1987, the Georgia Supreme Court remanded the case in part, directing the trial court to “appoint competent counsel to represent defendant for the purpose of a hearing which shall be conducted to determine if for any reason, including the lack of funds, the defendant failed to receive effective assistance of counsel.” Gary, 336 F.Supp.2d at 1345. On July 13, Siemon, whose performance would be the focus of the remand proceeding, again moved to have Judge Followill recused from the case. His motion was denied.
On August 14, the court appointed two attorneys to represent Gary in the remand proceeding, H. Haywood Turner, III, and Peter B. Hoffman, both of Columbus. On October 5, Siemon appeared as Gary’s counsel and filed motions asserting Gary’s right to have counsel of his choice and challenging Turner’s legal competence. The motions also complained of “the racially biased use of peremptory challenges prior to his competency trial,” claimed that Gary had a “right to funds on remand,” and alleged that the State had infringed “his right to have his guilt and sentence determined free from racial considerations.” Respondent’s Exhibit No. 80, at 1-2. On October 6, Frank L. Derrickson also filed a notice of appearance in behalf of Gary.
The remand proceeding was held before Judge Followill on three separate days, November 4, 12, and 16, 1987. At the November 4 session, Siemon addressed the apparent conflict in his representing Gary on the question of his own ineffectiveness: “Anticipating that perhaps there would be an order at some point removing me as counsel ... I consulted Mr. Gary ... and Mr. Gary has requested the services of an independent attorney, one that’s not tied to Columbus, one that’s not appointed by the Court, to represent him on remand if in fact I am disqualified from further representation of him.” Respondent’s Exhibit No. 72 at 7. Siemon then admitted that he had refused to share the trial and pretrial transcripts with Turner, one of the court appointed attorneys on remand, stating that “[t]he attorney [i.e., Derrickson] that’s going to be representing Mr. Gary, should I be removed by order of the Court ... has acquired the services of a New York law firm to assist him in Mr. Gary’s representation and that the transcripts are now in New York being reviewed by this law firm.” Id. at 8. He argued, “[o]ur position is that the transcripts contain margin notes written by me during the course of the proceedings, mostly during the pretrial proceedings, but also margin notes written by me during the course of the appeal, and those margin notes are protected by the attorney-client privilege and by the work-product doctrine.” Id. at 8-9. Siemon added that he couldn’t “waive ... the attorney-client privilege and the work-product doctrine ... rights [because they are Gary’s], and [Gary] refuses to waive those rights.” Id. at 9. The court then ordered Siemon to retrieve the transcripts and turn them over to Turner.
At the November 12 session, both Derrickson and Siemon appeared on behalf of Gary. Siemon argued that he could appear because Gary never contended that his representation was ineffective. Rather, “[w]hat Mr. Gary is alleging in this Court is that it was the trial Court’s rulings that denied him the effective assistance of counsel.” Respondent’s Exhibit No. 73 at 7. “[T]herefore, there is no conflict between me and Mr. Gary. Mr. Gary is not alleging that I didn’t represent him properly. Mr. Gary is and always has alleged that I was not allowed to represent him properly because of the Court’s denial of funds.” Id. After confirming that Gary wanted Derrickson to represent him, id. at 27, the court ruled that Derrickson would represent Gary and that Siemon would not. Derrickson then moved the court for funds for investigative and expert assistance, and the court denied his motion.
The State issued subpoenas for Siemon, Harvey, and Parker for the November 16 session, asserting that the effective assistance of trial counsel issue could not be resolved without defense counsel’s testimony. Derrickson moved the court, on behalf of Gary, to quash the subpoenas, arguing that the subpoenas were
an attempt [by] the State ... to interfere with and to destroy Mr. Gary’s attorney-client privilege and his ... work product.... The whole strategy of the State has been to drive a wedge between Mr. Gary and the lawyer of his choice, Bud Siemon. We think it’s a naked power play to try and get these lawyers up and cross-examine them about their innermost secrets and conversations with Carlton Gary in an effort to gain some discovery in this matter. We think that that’s all it is and that this Court should recognize it as that.
Respondent’s Exhibit No. 74 at 101-02.
At the hearing, Derrickson asked Gary if he wished to waive his “attorney-client privilege or [his] work product privilege,” and Gary said no. Id. at 104. Judge Followill then asked Derrickson whether Gary understood that by asserting the attorney-client privilege, he was effectively waiving the one issue before the court on remand — whether there was ineffective assistance of counsel at trial. Id. at 109. He called a recess so that Derrickson could explain the consequences of asserting the attorney-client privilege to Gary. After the recess, Gary informed the court that he could not know whether to invoke the attorney-client privilege until he heard State’s examination of Siemon. Id. at 125.
Derrickson’s sole witness at the hearing was William J. Smith, the District Attorney. Derrickson questioned Smith about how much the State had spent in investigating and prosecuting the case. The purpose of this line of questioning was to imply that defense should have been given the funds it requested.
The State called Siemon to the stand to question him about the handling of Gary’s defense. Derrickson, invoking Gary’s attorney-client and work product privileges, objected to this line of inquiry — except in a few instances where the pretrial or trial transcripts provided a clear answer. Since Gary had previously indicated that he could not be sure about invoking these privileges until he heard each question, the court asked Gary individually whether he was sure he wanted to invoke the privilege after each time Derrickson objected.
The State began its questioning by inquiring into Siemon’s experience in capital cases, the circumstances under which Siemon had taken the case, and the support he received from lawyers and others experienced in defending the accused in capital cases. Siemon testified that he had been lead or associate defense counsel in “[a]pproximately thirteen” capital cases, id. at 195, one of the reasons he took Gary’s case was because it was “such a good funds case,” id. at 203, that he was well acquainted with many of the lawyers who had represented defendants subject to the death penalty, and that while he was representing Gary, he received advice and assistance from several of these lawyers, id. at 203-05, whom he referred to as the “Team Defense.” Id. at 206. Derrickson did not object to this line of questioning.
The State then inquired into Siemon’s performance in representing Gary at the pretrial and trial stages of the prosecution. Derrickson repeatedly invoked the attorney-client privilege or the work product doctrine on Gary’s behalf. On each occasion, Gary confirmed to the court that he agreed with Derrickson’s objections. As a result, the State was unable to put forth evidence as to whether Siemon had effectively represented Gary at trial and during the pretrial proceedings. After Siemon stepped down from the witness stand, Derrickson stated that he would interpose the same objections if the State questioned Harvey or Parker. Gary told the court that he agreed with Derrickson’s strategy. The State therefore declined to call Harvey or Parker, and the remand hearing concluded.
On June 12, 1989, Judge Followill entered an order finding that Gary had waived his ineffective assistance of counsel claim and, in the alternative, that Gary failed to show that he had received ineffective assistance of counsel for any reason, including lack of funds. In holding that lack of funds did not render counsel’s performance ineffective, the court addressed each time the court had denied a request for funds.
In addressing the denial of funds for a serologist, the court noted that “[djefense counsel made a request for funds to employ a forensic serologist to mount an ‘attack on the reliability of electrophoresis, a form of testing of bodily fluid samples.’ ” Order at 7. However, had counsel kept an appointment they had scheduled with the GBI Crime Lab, “they would have discovered that electrophoresis was not used in [Gary’s] case ... This court is at a loss to see the relevance of an attack on a test that was not conducted.” Id. The court further noted that the defense did not need an expert serologist because the prosecution’s only blood evidence
was that this defendant could not be eliminated as the donor of the serological samples. It is uncontested by either party that the defendant was included as a possible donor with literally millions of other persons.... Any evidence that only includes any defendant in a class with literally millions of people is certainly not critical.... [F]ailure to grant funding in this matter did not render counsel’s performance deficient nor did failure to grant funding undermine confidence in the result of the trial.
Id. at 6-9. The court similarly held that the denial of funds for fingerprint and hair experts did not render defense counsel ineffective.
The court then concluded that Gary had waived his argument that the lack of funds had rendered trial counsel constitutionally ineffective:
In this case ample opportunity was given to this defendant through a hearing [to challenge the competence of trial counsel] with counsel of his choosing (and additional counsel, if he chose so to avail himself) to urge any and all possible errors affecting the trial or prejudicing the defendant whether or not the conduct, assistance and aptitude of his trial counsel sank to the constitutional level of ineffectiveness. This defendant refused to accept the opportunities provided him. For reasons probably known only to itself the State elected to go further than even the defendant in the course of the hearing and attempted to elicit from defense counsel August F. Siemon reasons for various avenues of conduct. To each and every material question the defendant asserted his privilege not to have his counsel testify. This is true even though the defendant was made inescapably aware by this court that this was his opportunity to have these possible issues litigated. It is therefore the finding of this court that as to those issues addressed during the hearing on remand that the defendant knowingly, intelligently and voluntarily waived those issues after having been repeatedly advised by the court that his conduct would amount to such a waiver.
Id. at 26-27.
The court concluded its review of the transcripts of pretrial, trial, and remand proceeding with these comments:
In an additional effort to secure for this defendant that which he would not secure for himself this court has reviewed the whole and entire record of the course of litigation in this case. In retrospect this court recognizes that some questioned activity and conduct on the part of counsel was clearly a matter of pretrial strategy and trial tactics. Such conduct delayed the trial of the case and inured automatically to the benefit of the criminal defendant. This is especially true when a case is almost nine years old when it goes to trial. It is now apparent that the course of conduct of defendant’s trial counsel throughout as carefully observed by this court was a deliberately planned attempt to create an impression of ineffective assistance, laying the blame solely upon the court’s failure to provide funding, and to pave the way for that issue to be raised by way of appeal and habeas corpus. There is no[] doubt that such course received Carlton Gary’s full acquiescence.
Order at 27-28.
The Georgia Supreme Court reviewed the record of the remand proceeding together with Gary’s appeal of his convictions and death sentences. It affirmed Judge Followill’s ruling and, finding no merit in any of the pretrial and trial errors asserted in Gary’s briefs, affirmed Gary’s convictions and death sentences and denied reconsideration. Gary, 389 S.E.2d at 222. As for Gary’s claim that the denial of funds caused defense counsel to render ineffective assistance, the court said this:
[In the remanding proceeding, Gary] refused to waive his attorney-client privilege as to any of his three trial attorneys, and none of them testified on behalf of the defendant. Lead trial attorney Siemon was called as a witness by the state; however, the defendant invoked his attorney-client privilege to prevent his attorney from answering any questions about tactical decisions he made while representing the defendant.
Id. at 220 (emphasis in original).
In his post-remand brief, the defendant continues to claim, as he did in his original appellate brief, that the trial court’s refusal (prior to the original trial) ... to provide funds for forensic and investigative assistance was an abuse of discretion, see Isaacs v. State, 259 Ga. 717(13)(a), 386 S.E.2d 316 (1989)....
The defendant was given the opportunity to prove that the denial of funds for legal, investigative, and forensic assistance prejudiced his defense; i.e., that because of the trial court’s denial of funds, attorney Siemon could not effectively represent his client. The defendant waived that opportunity, and we need not further address his contentions in this regard.
Id. at 220-21. Gary sought review of the supreme court’s decision in the United States Supreme Court. The Court denied his petition for a writ of certiorari, Gary v. Georgia, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990) (Mem.), and his petition for reconsideration, 498 U.S. 1043, 111 S.Ct. 720, 112 L.Ed.2d 708 (1991) (Mem.).
E.
Between 1991 and 1994, Gary filed an initial petition and two amended petitions for a writ of habeas corpus in the Superior Court of Butts County, Georgia. The combined petitions contained thirty-two claims for relief, twenty-nine of which asserted trial court errors that were cognizable on direct appeal but not on collateral attack in a habeas corpus proceeding. One of these twenty-nine claims was that the denial of funds to employ a forensic serologist violated the constitutional right recognized in Ake v. Oklahoma. The three claims not cognizable on direct appeal, and thus subject to habeas corpus review, were (1) that Judge Followill denied Gary his counsel of choice, i.e, Derrickson, during the remand proceeding by appointing two lawyers, Turner and Hoffman, to represent him, (2) that Gary was denied effective assistance of counsel at trial, on appeal, and during the remand proceeding, and (3) that the prosecution withheld exculpatory evidence — police reports, inconsistent statements of a rape victim who identified Gary as her assailant, and a bite mark exemplar — in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The ineffective assistance and Brady claims were subjected to evidentiary hearings in the superior court. The ineffectiveness claim alleged that defense counsel rendered ineffective assistance of counsel throughout the prosecution of the case and on direct appeal. The petition cited eighty-nine instances of ineffective assistance of trial counsel in conducting Gary’s defense — specifically, in presenting pretrial motions, in handling Gary’s special plea of mental ineompetency, in dealing with the State’s evidence, and in failing to conduct an adequate pretrial investigation into Gary’s life and background, resulting in the jury receiving no evidence of mitigating circumstances in the penalty phrase of the trial. The petition cited numerous trial court errors that appellate counsel failed to raise on appeal. It challenged the effectiveness of remand counsel on two theories: first, a conflict of counsel existed due to the relationship between Derrickson and Siemon; second, Derrickson failed to establish the eighty-nine instances of ineffectiveness of trial counsel at the remand hearing.
At the evidentiary hearing held on Gary’s ineffective assistance claims, Gary’s attorneys called no witnesses to show that counsel were ineffective at trial, on appeal, or in the remand proceeding. We can only infer that they rested their case on the record of the trial proceedings, the briefs on appeal, and the record of the remand proceeding. The only evidence bearing on the ineffectiveness issues came from the State. Assistant Attorney General Susan Boleyn called Derrickson to the stand and asked him why, in the remand proceeding, he did not call Gary’s trial counsel to testify on the question of ineffectiveness. Derrickson explained his decision not to call Gary’s trial counsel, stating, “I thought the Georgia Supreme Court had remanded the case for the purpose of determining — of examining the fund issue from the Sixth Amendment context.... I didn’t think that there was any purpose in putting on those witnesses.” Boleyn then asked him whether he “presented any evidence on the so-called straight forward [sic] ineffectiveness claims, as opposed to funds claims.” Derrickson responded that he “didn’t think that is what the hearing was about.” He conceded, however, “I may have been wrong about that. I certainly — you know, I mean, I certainly have made errors in my life as an attorney.” Respondent’s Exhibit No. 146 at 467-69.
At the hearing on the Brady claim, habeas counsel introduced forty-one exhibits, but no testimony. Habeas counsel argued that under Brady the prosecution should have turned over as exculpatory: (1) police reports of men the police investigated as possible perpetrators of the crimes alleged in Gary’s indictment; (2) inconsistent statements by G.M., who identified Gary as the man who raped her after tying her up with a stocking and whose testimony was introduced to establish the defendant’s modus operandi; and (3) a plaster exemplar of bite marks left on one of the victims, Janet Cofer, whose rape/murder had been presented at trial as a collateral crime. The State explained that it had not produced the exemplar because it had been misplaced.
In orders entered on January 27 and November 13, 1995, the superior court denied habeas relief. In doing so, it adhered to the Georgia Supreme Court’s determination that Gary had waived his ineffective assistance of trial counsel claim by invoking the attorney-client privilege and preventing Siemon, Harvey, and Parker from testifying at the remand proceeding. On the claim that Derrickson had rendered ineffective assistance in the remand proceeding by not calling trial counsel to testify, the court found that Derrickson’s decision amounted to a reasonable strategy — it was reasonable for Derrickson to limit his presentation to the “funds issue.”
The court rejected each of the Brady allegations. First, it held that the police reports at issue were not exculpatory, as none of the other men investigated could have committed the rape/murders alleged in the indictment. Second, it held that the inconsistent statements were merely cumulative of statements Siemon used to impeach G.M. Finally, third, it held that the prosecutor’s failure to produce the bite mark exemplar was excusable because the exemplar could not be located, and in the alternative, because the non-disclosure was immaterial. The court concluded that, “the combined effect of these [materials] does not undermine confidence in the verdict, and there is no reasonable probability that the result of the trial would have been different if these documents were given to the defense at trial.” Respondent’s Exhibit No. 161 at 4-5.
Gary applied to Georgia Supreme Court for a certificate of probable cause to appeal. The court denied his application, and the United States Supreme Court denied certiorari review. Gary v. Turpin, 520 U.S. 1244, 117 S.Ct. 1852, 137 L.Ed.2d 1054 (1997) (Mem.), reh’g denied, 521 U.S. 1137, 118 S.Ct. 7, 138 L.Ed.2d 1040 (1997) (Mem.).
F.
On November 18, 1997, Gary petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He presented 29 claims that, for the most part, mirrored the claims Gary presented in his state habeas petitions. Four of the claims — those set out in the certificate of appealability — are relevant in this appeal.
The first of these claims alleged that the trial court denied defense counsel funds for a forensic serologist in violation of Ake v. Oklahoma. The second alleged the same three Brady claims presented to the state habeas court and further alleged that the prosecution should have turned over the notes and work papers of the GBI Crime Lab experts, which habeas counsel obtained after filing Gary’s initial petition in the district court. The third claim alleged that Siemon and Derrickson deprived Gary of his right to the effective assistance of counsel on direct appeal to the Georgia Supreme Court, and the fourth alleged that Derrickson deprived Gary of effective assistance of counsel during the remand proceeding.
The district court held several hearings on Gary’s petition, some of which involved the serological evidence — semen and blood — the police had found at four of the murder scenes. The evidence had been introduced at trial through the testimony of a GBI Crime Lab serologist, John Wegel, who testified that Gary may or may not have been the secretor. At one of the hearings, the district court considered the significance of Wegel’s notes and work papers. Habeas counsel insisted that they could prove that Gary was not the secretor if the court provided them with funds to employ a forensic serologist to analyze Wegel’s notes and work papers. The court provided counsel with $2,000 for that purpose.
After counsel obtained the services of a serologist, Roger Morrison, they requested an evidentiary hearing. The court granted their request and held a hearing in which Wegel and Morrison explained and commented on the adequacy of the tests Wegel conducted in analyzing the semen. Wegel testified that the donor of the semen was a weak or non-secretor; Morrison testified that he had examined Gary’s saliva and concluded that Gary was a normal secretor, implying that he could not have been the source of the semen. Wegel countered Morrison’s conclusion by stating (1) that secretion levels vary over time and that eighteen years had passed between the dates the donor deposited the semen and the date of Morrison’s examination, and (2) that secretion levels of semen and saliva may differ and that, while Wegel examined semen, Morrison examined saliva. At the conclusion of the hearing, habeas counsel moved the district court for funds to have Gary’s semen tested by Morrison and the results of the test introduced into evidence. The court denied the motion.
The district court held two hearings on habeas counsel’s allegation that, notwithstanding its representation to the Butts County Superior Court, the State intentionally withheld the bite mark exemplar. Counsel suspected that the exemplar was in the Muscogee County Coroner’s Office. The coroner, Dr. Don Kilgore, had died in 2000, so the court issued a subpoena duces tecum to the coroner’s widow, K.K., and to his two step-daughters, J.K.H. and J.K.W. The subpoena commanded the family members to appear in court with the exemplar.
None of the family members, however, produced the exemplar when they appeared. K.K. said that she had seen the exemplar at one of her husband’s offices but that she could not recall which one. J.W., Joannie’s husband who appeared voluntarily, testified that he might have seen the exemplar and, in any event, he had a good mental picture of it because Dr. Kilgore had described it “in great detail.” J.K.W. testified that she had not seen the exemplar but that she had heard about it from her father. She also said that H., her son, told her that Dr. Kilgore had shown him the exemplar before he died. The court then directed that a subpoena duces tecum issue for Joannie’s son, Henry, but Henry also failed to produce the exemplar when he appeared. He testified that eight to ten years earlier he had seen the exemplar at his grandfather’s house in a box but that he did not know what came of it.
On September 28, 2004, the district court denied Gary’s petition on the merits. Gary filed a timely notice of appeal and simultaneously moved the district court for a certificate of appealability. The district court issued the certificate of appealability as to Gary’s Ake claim, his Brady claims, his ineffective assistance of counsel claims, and his claim that the habeas court erred in denying him funds to hire a serologist to examine his semen. In their briefs to this court, habeas counsel did not address the ineffective assistance of counsel claims. Accordingly, we deem them abandoned. See Tanner Advertising Group, L.L.C. v. Fayette County, Ga., 451 F.3d 777, 785 (11th Cir.2006) (“Under the established law of this Circuit, ‘issues that clearly are not designated in the initial brief ordinarily are considered abandoned.’ ”) (citing Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995)).
As this appeal was proceeding through the briefing stage, Dr. Kilgore’s successor as Muscogee County Coroner, Dr. James L. Dunnavant, found the missing exemplar in the bottom drawer of a cabinet in his office. An earlier search of the Coroner’s Office had been unsuccessful. Accordingly, on November 23, 2005, we remanded the case to the district court so that the court could consider the significance of this evidence to Gary’s defense. On February 14, 2007, the district court held a hearing at which the exemplar was introduced. The court concluded that the evidence would have played no role in the presentation of Gary’s defense. Accordingly, the court adhered to its earlier decision denying Gary habeas corpus relief.
We now address the issues Gary has not abandoned: first, the Ake claim that the superior court, during the prosecution of the case, erred by denying Gary’s request for funds to hire a forensic serologist; second, the claim that the district court, in considering his habeas petition, abused its discretion in denying him funds to have his semen tested; and, third, the Brady claims that the prosecution denied Gary a fair trial by withholding evidence favorable to the defense.
II.
The district court’s disposition of a federal constitutional claim under 28 U.S.C. § 2254 is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (Apr. 24, 1996), which establishes a “general framework of substantial deference” for reviewing “every [federal constitutional claim] that the state courts have decided.” Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir.2005). Unless the Georgia courts’ resolution of a constitutional claim is “contrary to, or involved an unreasonable application of, clearly established federal law,” as determined by the Supreme Court of the United States, or “based on an unreasonable determination of the facts in light of the evidence presented,” the district court is bound not to disturb it on habeas review. Crowe v. Hall, 490 F.3d 840, 844 (11th Cir.2007) (quoting 28 U.S.C. § 2254(d)). On occasion, the state courts reject a constitutional claim not on the merits but, instead, on an independent state law ground. Under that circumstance, the district court does not reach the merits of the constitutional claim. See Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir.1994).
Here, AEDPA mandates that we affirm the district court’s denial of Gary’s habeas petition as to the first and third issues before us. First, the district court need not have reached the merits of Gary’s claim that the trial court denied his request for funds for a forensic serologist in violation of his rights under Ake because the Georgia Supreme Court resolved the denial on the independent state law ground of waiver. Second, the district court acted within its discretion to deny Gary funds to have his semen tested. Third, the district court correctly held that the state habeas court did not misapply clearly established federal law when it rejected Gary’s Brady claims.
III.
A.
Gary presented his claim that the trial court violated the constitutional mandate set out in Ake v. Oklahoma by denying him funds to employ a serologist to the Georgia Supreme Court on direct appeal. The Georgia Supreme Court assumed, albeit sub silentio, that Gary was entitled to the funds and remanded the case to the trial court with the instruction that the court determine whether the denial of funds caused him prejudice. Gary contended that he was prejudiced because the lack of funds rendered his lawyers, chiefly Siemon, incapable of providing him with constitutionally effective representation. That is, Gary argued that but for the denial of funds, the outcome of the trial would have been different. The supreme court therefore instructed the trial court to determine whether trial counsel was ineffective for any reason, including the denial of funds. If the trial court found that counsel were ineffective and that such ineffectiveness materially affected the outcome of the trial, Gary would receive a new trial.
On remand, Judge Followill informed Gary that the court could not determine whether the denial of funds had rendered his lawyers ineffective unless the court heard from his lawyers under oath. Gary, however, refused to waive the attorney-client privilege so that the lawyers could testify. Gary’s invocation of the privilege applied to all three of his main trial lawyers, Siemon, Harvey and Parker.
Judge Followill took extra steps to ensure that Gary agreed with and understood the consequences of invoking the attorney-client privilege. He stated explicitly that by invoking the privilege Gary would waive his claim to ineffective assistance of counsel. He instructed Derrickson to explain these consequences to Gary and declared a recess so that Derrickson and Gary could confer. After the recess, Derrickson reiterated that Gary would not waive the privilege, and the court confirmed this by speaking directly to Gary and asking him whether he agreed. Gary said that he agreed, but that he could not decide whether to invoke the attorney-client privilege until he heard the specific questions put to Siemon. During Siemon’s testimony, the court went so far as to ask Gary, upon each of Derrickson’s objections, whether he was sure he wanted to invoke the privilege. He affirmed Derrickson’s decisions each time. At the end of the day, the court found that Gary had voluntarily waived his right to claim ineffective assistance of counsel.
Even in the absence of waiver, the court held that the denial of funds for a forensic serologist — the matter we are immediately considering — had no effect on the quality of counsel’s performance. Early in the case, the prosecution provided the defense with the Crime Lab reports regarding the serological evidence found at the crime scenes — semen and blood. The reports stated, and Judge Followill found, that the “defendant could not be eliminated as the donor of the serological samples.” Respondent’s Exhibit No. 78 at 6-9. It was “uncontested ... that the defendant was included as a possible donor with literally millions of other persons.” Id. at 7-8. After receiving these reports, defense counsel spoke to the Crime Lab’s Deputy Director, Dr. Byron Dawson, who explained the reports. Dawson invited counsel to visit the Lab and interview the examiners. Siemon, Harvey, and Parker made an appointment to do that, but they canceled the appointment. They relied, instead, on the contents of the reports and the information gained from Dr. Dawson. Given these circumstances, Judge Followill assumed that counsel acted prudently in not going further with their investigation — perhaps because the reports’ findings were “certainly not critical” given the weak nature of the State’s evidence. Id. at 8.
Because Gary invoked his attorney-client privilege, Siemon and his co-counsel did not have to answer for their failure to visit the Crime Lab, interview the examiners, and examine their notes and work papers. Judge Followill found, after reflecting on defense counsel’s “pretrial strategy and trial tactics,” that counsel
deliberately ... attempted] to create an impression of ineffective assistance, laying the blame solely upon the court’s failure to provide funding, and to pave the way for that issue to be raised by way of appeal and habeas corpus. There is no[] doubt that such course received Carlton Gary’s full acquiescence.
Id. at 27-28. In holding that Gary waived his ineffectiveness claim, the Georgia Supreme Court surely took Judge Followill’s findings into account.
We find nothing in the brief Derrickson filed with the supreme court following Judge Followill’s decision on remand that took issue with the court’s finding that Gary had independently invoked his attorney-client privilege and thereby waived his claim. But even if we were to assume that Derrickson challenged the finding, we find nothing in the record before the supreme court that would provide a basis for saying that the court lacked a firm foundation in the evidence for rejecting Gary’s Ake claim on the independent state ground of waiver. We therefore resolve the first issue against the petitioner.
B.
Gary asks that we vacate the district court’s judgment and remand the case for further consideration on the ground that the district court abused its discretion in denying him funds to have his semen tested. The question of whether the court should have provided such funds arose because the district court, after agreeing with the Georgia Supreme Court that Gary had waived his claim for funds, decided to take the case one step further and consider, as an alternative issue, whether Ake v. Oklahoma required the trial court to grant Gary’s request for funds to hire a forensic serologist.
Ake held that an indigent defendant is entitled to expert psychiatric assistance. The district court assumed that Ake informed the trial court’s decision whether or not to grant Gary’s request for serologist funding, drawing on our decision in Conklin v. Schofield, 366 F.3d 1191, 1206 (11th Cir.2004), in which we suggested, but did not specifically hold, that the “due process clause could require the government to provide non-psychiatric expert assistance to an indigent defendant upon a sufficient showing of need.” The district court then held that the trial court was unreasonable in denying the request because it was apparent that defense counsel needed a serologist to question the State’s expert about his serological fluid findings. Gary, 336 F.Supp.2d at 1361. Nonetheless, the district court held that, since the State’s expert’s serological testimony was inconclusive, the presence of a competing defense expert would not likely have altered alter the outcome of the trial, and the denial of funds did not render Gary’s trial fundamentally unfair. Id. at 1362. Gary argues that the district court should not have ruled until it provided funds for the testing of his semen and, if necessary, received the results of the test.
The flaw in Gary’s argument is that Ake had no bearing on the state trial court’s decision of whether to grant defense counsel’s request for funds. That is, the court’s decision to deny the funds could not have been “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
The Supreme Court has instructed that a state court decision is “contrary to” established federal law if it “applies a rule that contradicts the governing law set forth in our cases.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J.). “[C]learly established Federal law” consists of the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. at 1523. The relevant law is the federal law that exists on the date the petitioner’s convictions become final. See Schwab v. Crosby, 451 F.3d 1308, 1324 (11th Cir.2006). A conviction becomes final “when the availability of direct appeal to the state courts has been exhausted and ... a timely filed petition [for a writ of certiorari] has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). A Supreme Court decision, which is not dictated by precedent or is not made retroactive to cases on collateral review, handed down after the petitioner’s conviction becomes final does not control the disposition of the petitioner’s habeas proceeding. Newland v. Hall, 527 F.3d 1162, 1196-1201 (11th Cir.2008).
As the district court correctly acknowledged, at the time Gary’s conviction became final on August 4, 1997, the Supreme Court had not extended Ake’s holding beyond the provision of psychiatric assistance. Accordingly, the state trial court was not bound as a matter of federal constitutional law to apply Ake in ruling on defense counsel’s request for funds to hire a forensic serologist. Rather, the request was governed by state law and committed to the trial court’s discretion. In sum, Gary’s denial-of-funds claim did not present a federal constitutional question, and the district court should not have entertained it.
C.
Gary contends that his convictions should be set aside because the State withheld exculpatory evidence in violation of Brady. He relies on the three alleged Brady violations that he asserted in his state habeas petition and two additional violations that were discovered after he filed his petition in the district court. In his two new claims, Gary alleges that the state should have turned over the notes and work papers of the Crime Lab experts who examined the serologic fluid the police found at some of the crime scenes and the plaster exemplar of the bite mark that the Muscogee County Coroner discovered on one of Janet Cofer’s breasts.
The Butts County Superior Court found nothing exculpatory in the forty-one exhibits that purportedly contained Brady material, and the district court agreed, holding that the superior court’s rulings were neither contrary to or an unreasonable application of Supreme Court precedent, nor based on an unreasonable resolution of the factual issues. Gary, 336 F.Supp.2d at 1363-73. Since the superior court did not have an opportunity to consider the prejudice, if any, Gary may have suffered because his trial counsel has not seen the Crime Lab notes and work sheets, the district court considered de novo the prejudice that happenstance may have caused. The court found that the State’s failure to provide counsel with those items did not deny Gary due process because their contents were not material; there was not “a reasonable probability that, had the [notes and] worksheets been disclosed to the defense, the result of the proceeding would have been different.” Id. at 1373 (internal quotations and brackets omitted).
The district court held an evidentiary hearing to determine whether the bite mark exemplar qualified as Brady material. After listening to the testimony of seven of the petitioner’s witnesses and receiving twelve exhibits, the court concluded that the State’s failure to disclose the exemplar did not alter its previous decision to deny the writ. The court indulged the assumption that, if armed with the exemplar, defense counsel, with the assistance of a forensic odontologist, could have, at the very least, cast doubt on whether the bite marks were Gary’s. Nonetheless, the court concluded that the unavailability of the bite mark exemplar “d[id] not undermine confidence in the verdict and sentence determined by the jury.” Gary v. Schofield, 493 F.Supp.2d 1255, 1264 (M.D.Ga.2007).
To establish a Brady violation, a petitioner must show that: (1) the prosecution possessed evidence favorable to the accused, because it was either exculpatory or impeaching, and did not disclose it to the defense; (2) the State suppressed the evidence such that the defense did not otherwise possess the evidence and could not reasonably have obtained it; and (3) the evidence was material, and its absence yielded prejudice. See, e.g., Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1354 (11th Cir.2004); Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). Evidence is material so as to establish prejudice only “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).
Gary argues that he has made a sufficient showing that a “reasonable probability” exists that, if he had the withheld evidence at trial, “the result of the proceeding would have been different.” The district court disagreed. We review the district court’s decisions as to the Crime Lab items and the bite mark exemplar, which the court reached after conducting a bench trial, by examining the court’s findings of fact for clear error and the court’s conclusions of law de novo. See, e.g., Mitchell v. Hillsborough County, 468 F.3d 1276, 1282 (11th Cir.2006) (noting that, after a bench trial, the court of appeals reviews legal conclusions de novo and findings of fact for clear error); Moon v. Head, 285 F.3d 1301, 1311 (11th Cir.2002) (reviewing de novo determination of the materiality of a Brady violation). We review the district court’s disposition of the remaining Brady claims de novo, by determining whether the Butts County Superior Court, in denying those claims, misapplied Supreme Court precedent or unreasonably determined the material facts. See 28 U.S.C. § 2254(d). We have carefully considered the superior court’s disposition of those claims and conclude, as the district court did, that they are not the product of a misapplication of Supreme Court precedent or faulty fact finding. Having said that, we turn to the two claims the district court tried, the State’s failure to disclose the Crime Lab notes and work sheets and the bite mark exemplar.
We reject the notes and work sheets claim out of hand. Despite habeas counsel’s argument to the contrary, Gary’s trial counsel always had access to the Crime Lab experts’ notes and work sheets. As Judge Followill stated in the order he entered following the remand proceeding, Siemon, Harvey, and Parker had arranged to meet the Crime Lab experts, but they canceled the appointment, choosing instead to rely on the Crime Lab reports and what they had learned from the Lab’s Deputy Director. At the trial, when John Wegel, the Crime Lab’s serologist, took the stand to testify, he had his notes and work sheets with him to refresh his recollection. Siemon, as he stood to commence his cross-examination, chose not to ask Wegel what he had used to refresh his recollection. During cross-examination, Siemon attempted to impeach Wegel with the Crime Lab reports, but he never took the next step to ask Wegel for his notes and work sheets, which were readily available. We are aware of no precedent — and habeas counsel has cited none — finding a Brady violation under these circumstances. The claim Gary presents is patently frivolous.
As for the bite mark exemplar, we have recited what led to its eventual disclosure. We now examine why, according to the State, the exemplar was not shown to the defense prior to trial. The exemplar was created after the body of rape and murder victim Janet Cofer was discovered on April 19, 1978. Dr. Joe Weber, a Crime Lab pathologist, while assisting Coroner Kilgore in performing an autopsy of the body the same day, observed “what appeared to be tooth marks” on the left breast. He consulted an odontologist, Dr. Carlos Galbreath, and Galbreath created an impression of the bite marks with rubber gel and a syringe. After the gel hardened, Galbreath made an exemplar of the bite mark impression, the standard procedure in dentistry for creating a permanent mold of impressions of teeth. The exemplar was stored in the Coroner’s Office until July 6, 1984, when the Columbus Police Department took possession of the exemplar after Gary was taken into custody.
Shortly after Gary’s indictment, the prosecutors took the exemplar to a forensic dentist, Dr. Thomas David. He examined the exemplar and concluded that no reliable comparison could be made between the exemplar and Gary’s teeth because Gary had undergone dental work since the last of the rape/murders. The prosecutors accepted Dr. David’s opinion and decided against introducing the bite mark exemplar as evidence at Gary’s trial. Hence, they returned the exemplar to the Coroner’s Office. Although Gary’s trial counsel had read the report of the Cofer autopsy and thus knew of the bite mark, they were not aware that an exemplar of the bite mark had been made or that the prosecutors were privy to Dr. David’s opinion that no reliable comparison could be made between Gary’s teeth and the bite mark.
Given this, it is clear that the State, i.e., the Coroner’s Office, had the bite mark exemplar and that, even with reasonable diligence, defense counsel could not have obtained it. The record is unclear, however, as to whether the exemplar constituted exculpatory evidence, given the dental work Gary underwent between the time of the Cofer rape/murder and his arrest and prosecution. Moreover, it is unlikely that Gary has shown a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Even if Gary had access to the exemplar at trial, he could only have shown that the bite marks were inconclusive; because of the intervening dental work, any bite mark comparison would neither identify nor exclude him as the perpetrator of the Cofer crime. The jury, in fact, actually heard evidence that the bite marks were inconclusive. Dr. Weber, the State’s pathologist, testified that the marks neither conclusively proved or disproved that Gary was the perpetrator. Taken in context with the other evidence, including Gary’s confession that he was at the Cofer residence when she was murdered, there exists no “reasonable probability” that the admission of an inconclusive bite mark exemplar would have changed the outcome of the proceeding.
In conducting our Brady analysis, we are mindful that we must consider the cumulative impact of the suppressed evidence. That is, we need to consider the cumulative effect of the bite mark exemplar, and the expert testimony its disclosure may have engendered, in conjunction with all other exculpatory evidence the prosecution did not disclose. Even when we do so, we cannot say that the combined effect of this evidence undermines confidence in the jury’s verdicts at the conclusion of the guilt or penalty phases of the trial. In this regard, we mention once again the probative evidence that linked Gary to the crimes in this case. Specifically, Gary confessed that he was present at, or had knowledge of, eight of the nine 1977-78 rape/murders portrayed to the jury. Although he tried to blame these crimes on a boyhood friend, M.C., the police found no evidence to corroborate his assertion. Nor were the police able to locate anyone else who may have been with Gary on those occasions. While the hair evidence was inconclusive — Gary was neither included nor excluded in the class of potential perpetrators — his fingerprints were found to match the latent prints found at four of the crime scenes. In sum, considering all the evidence the State withheld from the defense, allegedly in violation of the Brady rule, we could not say that confidence in the jury’s verdicts following the guilt or penalty phases of the trial is undermined, for there is no reasonable probability that the verdicts would have been different had the jury received the evidence at issue.
IV.
We have thoroughly considered the issues set out in the certificate of appealability and find no cause for reversal. The judgment of the district court is, accordingly,
AFFIRMED.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The trial date was subject to several postponements.
Shortly after filing the notice of appearance, Siemon told the State's prosecutors, William J. Smith and Douglas G. Pullen, Muscogee County District Attorney and Assistant District Attorney, respectively, that he only took tire case because it was such a good “funds case.” Respondent's Exhibit 74, at 203. Siemon continued, "one of the legal issues that has intrigued me was the issue of funds.” Id. .The court subsequently denied, on multiple occasions, Siemon’s requests for funds for experts, as indicated in the text, infra. The record does not indicate the disposition, if any, the court made of the motion Kirby and Hyles had filed seeking a psychiatric and psychological evaluation of Gary. As indicated in the text, infra, the court had Gary evaluated in March 1986.
Nelson Jarnigan, of Harvey and Jarnigan, also appeared as co-counsel for Gary. His participation in the case was limited, the bulk of the work being performed by Siemon and Harvey.
In support of one of his requests for funds, Siemon did present the court with a written proffer — which he shared with the prosecution-stating that he needed a "forensic consultant," a "jury expert,” and an investigator. However, Siemon identified none of these persons or the sum of money he purportedly needed. .As this court explained earlier in a similar context, when counsel for an indigent defendant requests expert assistance, counsel should first perform a modicum of basic investigative/legal research. Such preliminary research will very likely elucidate, for both the defense and the trial court judge, the need, if any, for expert assistance. In Moore v. Kemp, 809 F.2d 702 (11th Cir.1987), the indigent defendant challenged the trial court's denial of expert funding. In rejecting his challenge, we noted, [Tjhree days before the [defendant’s] attorney presented his motion for the appointment of an expert to [the trial court], the prosecutor gave him copies of the reports he had received from the state crime lab and the names of the experts who had authored the reports and would testify for the prosecution. Inexplicably, [defendant’s] counsel never informed [the trial court] what those reports disclosed or the areas of expertise of the persons who had made them and, presumably, would testify at trial. Counsel also failed to inform [the trial court] whether he had interviewed the State’s experts about any tests they may have performed and, if not, whether they would be amenable to such interviews. A thorough study of the crime lab reports and interviews with the authors of the reports may have eliminated any need for expert assistance. At the very least, if defense counsel had been more diligent in his study and more specific in his motion, [the trial court] would have been more fully apprised of the prosecution’s case and of the defense’s need, if any, for expert assistance. Id. at 717-18.
The same day, he moved the court for further disclosure of Brady material by the prosecution. The motion lay dormant until February 18, 1986.
Judge Followill handled the case to its conclusion. He heard several of Siemon's pretrial motions, including motions to suppress the post-arrest statements Gary made to the police and physical evidence the State intended to introduce in its case in chief. The latter motions were denied, as were Siemon’s motions to disqualify certain State experts from testifying.
The petition alleged, among other things, that Gary was being kept in solitary confinement, was being denied exercise privileges, and was being harassed by jail personnel.
A petition for a writ of habeas corpus challenges the authority of the petitioner’s custodian to hold the petitioner. The Sheriff was holding Gary pursuant to the Muscogee County Superior Court's order that he be detained in the county jail. What Gary should have done was to seek relief from the judge who denied his request for release on bail and ordered him detained.
Siemon renewed his Brady motion on February 26. A formal ruling on the motion was unnecessary, since Judge Followill was reviewing the State's documents in camera as the defense requested.
Siemon cited Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Justice Rehnquist's dissent in particular, as requiring that the court have Gary examined by an independent psychiatrist selected by, and therefore favorable toward, the defense. Neither Ake nor Justice Rehnquist’s dissent supported Siemon’s position. In Ake, the Court said this after holding that the state trial court should have provided for the examination and evaluation of the defendant's competency to stand trial and sanity at the time of the offense: This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist ... and as in the case of the provision of [court appointed] counsel we leave to the State the decision on how to implement this right. Ake, 470 U.S. at 83, 105 S.Ct. at 1096.
Griffin is the county seat for Spalding County.
Gary consented to Harvey’s motion.
The documents established that on August 10, 1979, Gary had been convicted of escape in Onondaga County, New York; on February 22, 1979, he had been convicted of armed robbery in Greenville County, South Carolina; and on March 29, 1979, he had been convicted of armed robbery in Cherokee County, South Carolina.
The murder was committed while the defendant was engaged in the commission of a burglary and while he was engaged in the commission of rape. See O.C.G.A. 17-10-30(b)(2).
See, e.g., Jackson v. State, 230 Ga. 640, 198 S.E.2d 666, 667 (1973) ("[T]he court is not privileged to invade the province of the jury and avoid its verdicts unless from clear necessity”).
In addition to being sentenced to death, Gary "received sentences of life imprisonment on the rape convictions and 20 years imprisonment on the burglary convictions, all to run consecutively.” Gary, 336 F.Supp.2d at 1344 (recounting sentence at trial).
Siemon appeared and argued in support of the motion; Frank L. Derrickson, an Atlanta lawyer, appeared with him.
The supreme court, in remanding, invoked its jurisdiction under the Unified Appeal Procedure. See O.C.G.A. § 17-10-36 (1980). The Georgia Supreme Court’s remand order stated that, if the superior court determined that Gary had received ineffective assistance of counsel, then that court must grant him a new trial. If the court determined that Gary did not receive ineffective assistance of counsel, however, the case would be returned to the Georgia Supreme Court "for review of the proceedings on remand and for the resolution of the remaining issues in the case.”
In Gary's brief on appeal, Siemon contended that he had been rendered ineffective because the superior court had denied him funds for expert assistance, including funds to employ a forensic serologist to analyze the semen the police found at the scene of four of the rape/murders described in the evidence presented to the jury. In Thornton v. State, 255 Ga. 434, 339 S.E.2d 240 (1986), the Georgia Supreme Court held that, in particular circumstances, indigent criminal defendants were entitled to state-funded expert witness assistance. In so holding, however, the court noted that [t]he ruling of this case cannot serve as a basis for wide-ranging demands on behalf of indigent defendants for scientific investigative funds. This case is, assuredly, far from the normal, in that, ... the record establishes that the possible scientific proof to be offered by the state is highly unusual in nature, as opposed to evidence such as blood samples, ballistics reports, and other routine scientific analyses. Id. at 241. Two years later, the Georgia Supreme Court reaffirmed the limited right of an indigent criminal defendant to receive experts provided at public expense, but it noted that the defendant must first disclose to the trial court "with a reasonable degree of precision, why certain evidence is critical, what type of scientific testimony is needed, what that expert proposes to do regarding the evidence, and the anticipated costs for services.” Roseboro v. State, 258 Ga. 39, 365 S.E.2d 115, 117 (1988). Roseboro did not articulate any right of a criminal defendant to make these proffers ex parte or in camera, as Siemon demanded. Implicit in the supreme court's remand order is the notion that the trial court may have erred in denying counsel's requests for funds and that the task before the superior court was to determine whether any such denial prejudiced the defendant.
On November 12, while the remand proceeding was underway, Siemon filed a supplement to his October 5 motion challenging Turner's legal competence.
After Derrickson appeared, he moved the court to dismiss the two court-appointed attorneys. The court denied his motion. “[A]l-though these two attorneys were not dismissed, they did not actively participate in, or interfere with, the proceedings on remand.” Gary v. State, 260 Ga. 38, 389 S.E.2d 218, 220 (1990). Following the remand, in arguing Gary's appeal to the Georgia Supreme Court, Derrickson contended that the superior court's refusal to dismiss the two court-appointed attorneys somehow deprived Gary of his right to counsel of his own choice. The supreme court disagreed: "there was no denial of the defendant’s right to choose his own counsel.” Id.
At his first appearance before Judge Land, Siemon told the court that he had handled 50 to 60 capital cases.
Siemon’s position throughout was that he could not waive the attorney-client or work product privileges because only Gary could waive the same. Siemon more than once told the court that he had consulted with Gary about waiving these privileges and that Gary was steadfast in refusing to waive them.
Regarding the fingerprint expert, the court said: [S]cientific reports were delivered to defense counsel ... affording ample opportunity to make any legal or factual investigation required to give this court any information by way of the evidence or by proffer.... [T]he record does not indicate that any fingerprint witnesses were ever contacted and interviewed prior to trial.... [A]ll experts were uniform in their agreement that the donor was the defendant, Carlton Gary. Moreover, at trial the defense never denied that Carlton Gary was the person who deposited the latent fingerprints in issue. In his opening statement [to the jury,] defendant’s counsel tacitly admitted that it was Gary who left the latent fingerprints at the crime scenes. Order on Remand at 9-10. After repeating previous statements that it was "impressed with the skill and ingenuity of counsel,” the court stated that ”[h]ad there been any possibility of tampering or any other latent or patent defect in the methods of collecting, maintaining and comparing the fingerprints this court is confident that such would have been brought to its attention by trial counsel.” Id. at 11. Regarding funds for the employment of a hair expert, the court noted that defense counsel had not interviewed the Crime Lab experts and said: "The hair evidence at most included defendant in that class of persons who could have been the donor of the questioned hair. Therefore, it was not critical.” Id. at 12. The court noted, moreover, that in his opening statement to the jury at the outset of the trial, Siemon indicated that a technician from the Columbus Branch of the Crime Lab would testify that hair samples found at the crime scenes did not match Gary's hair. Siemon was wrong. What the expert said was that Gary could not be excluded as a potential donor of the hair samples. Even so, the court specifically found that the omission of funds for a hair expert "was insufficient to undermine the result of the trial.” Id.
Gary was represented in these proceedings by Vorys, Sater, Seymour & Pease, a Columbus, Ohio, law firm, and Thomas Dunn and Jeffrey Ertel of the Georgia Resource Center.
Judge Followill had reviewed these police reports; they were in the investigative file the prosecution turned over to him to examine in camera for Brady material. He concluded that the reports were not exculpatory, and the habeas court agreed. .Gary's petition presented 29 claims for relief. The claims before us are those set out in the certificate of appealability the district court issued after denying Gary’s petition. Gary was represented on federal habeas by John R. Martin and Michael Kennedy McIntyre, both Atlanta lawyers.
Counsel obtained the notes under the Georgia Open Records Act, O.C.G.A. §§ 50-18-70, el seq.
The semen was found at the scene of the rape/murders of Florence Scheible and Martha Thurmond, for which Gary had been indicted and convicted, and the rape/murders of Fern Jackson and Mildred Borom. .On August 21, 2002, the district court entered an order dismissing the claims that were procedurally defaulted. In its September 28 order, the court denied on the merits the remaining claims, in addition to the four claims set out above.
Gary moved this court to expand the certificate of appealability. We denied his motion.
It is apparent to us why habeas counsel abandoned the ineffective assistance of counsel claims: the record contained no testimony or other proof that any of Gary's lawyers— Siemon, Harvey, Parker, Jarnigan, or Derrickson — rendered ineffective assistance. One reason for the absence of evidence is that in the remand proceeding — which was the first time an inquiry was made into the quality of counsel’s performance — Gary prevented Siemon, Harvey, and Parker from testifying about any material issues. The first comprehensive allegations of ineffective assistance of counsel were the allegations asserted in Gary's combined petitions for a writ of habeas corpus in the Butts County Superior Court. The petition, as amended, was laden with 89 assertions of ineffective assistance of trial counsel spanning the entire pretrial and trial stages of the case. In addition to alleging that trial counsel were ineffective, the petition alleged that Derrickson was ineffective in not establishing trial counsel's ineffectiveness during the remand proceeding. When the superior court heard the habeas petition, however, Gary’s attorneys put on not one witness to establish the petition's assertions. Counsel did not call Siemon, Harvey, Parker, or Derrickson to testify. Habeas counsel could have called them because Gary's habeas allegations that they rendered ineffective assistance of counsel had operated to waive the attorney-client privilege and any claim to work product Gary may have had. Implicit in Gary's habeas petition was the allegation that although the Georgia Supreme Court had held that Gaiy, in the remand proceeding, had waived his right to challenge trial counsel’s effectiveness, the waiver was involuntary — -the product of patently incompetent advice from Siemon and Derrickson. In short, all habeas counsel had to go on were the petition’s naked allegations that Gary received ineffective assistance of counsel at every stage of the prosecution, including the direct appeal to the Georgia Supreme Court. Habeas counsel left it to the State to call Derrickson to the stand. When asked by the State why he chose not to call any of Gary's trial counsel to testify, Derrickson said that he thought the supreme court’s remand order only concerned the lack of funds issues, that the order did not include the issue of whether trial counsel’s performance was ineffective apart from the lack of funds. Derrickson admitted that his reading of the remand order — which explicitly covered the effectiveness of every aspect of trial counsel's performance, whether or not related to the denial of funds — might have been “wrong.” When it came time for habeas counsel to question Derrickson on cross-examination, however, they did not show him the order, ask him whether he understood what it stated, and, after he acknowledged that the breadth of the inquiry included trial counsel’s overall effectiveness, ask him why he did not summon Siemon, Harvey, or Parker to the witness stand.
Ake was decided on February 26, 1985. It held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Siemon filed his brief on direct appeal on December 13, 1986; the Georgia Supreme Court issued the remand order on June 26, 1987. As of the latter date, neither the United States Supreme Court nor this court had extended Ake's holding to grant an indigent defendant the right to funds for the purposes Siemon and his colleagues were asking — to hire a serologist, a fingerprint analyst, or any other non-psychiatric expert. Accordingly, whether Gary was entitled to funds for the employment of a serologist was a matter of state law, see supra note 23, not federal constitutional law.
At trial, Benny Ray Blakenship, a microan-alyst at the Crime Lab called to testify for the State, referred to defense counsel’s cancellation of the appointment in the exchange that took place between District Attorney Smith and Blakenship after Siemon attempted to impeach him: Smith: Did the Defense counsel ever make an appointment with you to discuss this case with you? Blakenship: Yes, Mr. Gary Parker called and made an appointment. Smith: Did he or anyone of the Defense, members of the Defense counsel staff, at that time keep the appointment? Blakenship: No, sir. Smith: So, you’ve never spoken with them about this? Blakenship: No, sir, they didn’t return the call. Smith: Would you have spoken with them if they had come? Blakenship: Yes, sir, we would have. Respondent’s Exhibit No. 57 at 3867. On rebuttal, Siemon had no response to the preceding exchange, other than to assert that he, Siemon, had talked with Dr. Byron Dawson, the Deputy Director of the Crime Lab, about the case. Blakenship testified that he was not sure whether Siemon had indeed talked to Dawson, but he did say that Dawson’s signature appeared on the official laboratory reports.
The court was prompted to entertain this alternative issue because habeas counsel had recently acquired the notes and work sheets of the Crime Lab experts who examined the serological materials the police had found at the crime scenes. Defense counsel did not have these notes and work sheets in their possession when they moved the trial court for the provision of funds.
In contrast, the relevant slate court decision disposing of Gary’s Brady claims is the date the United States Supreme Court denied reconsideration of his petition for a writ of certiorari to review the Georgia Supreme Court's denial of Gary’s application for a certificate of probable cause to appeal the Butts County Superior Court's denial of his petition for a writ of habeas corpus.
The district court concluded that the notes and worksheets were immaterial because the trial testimony established, and the State conceded, that the findings of the serological tests were inconclusive. Given this, even if Gary had access to these documents prior to or at trial, he would not have been able "to put the whole case in such a different light as to undermine confidence in the verdict.” Gary, 336 F.Supp.2d at 1373 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).
The district court held a bench trial on these two Brady claims. Although this is a habeas case, the standard of review — as set out in the above text — is the same as it is in any other case tried to the bench. .We review the district court's decisions not to disturb the Butts County Superior Court’s Brady claim rulings as if we were standing in the district court’s shoes and asking whether the superior court's rulings were "contrary to, or involved an unreasonable application of, clearly established Federal law” or were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Wegel had examined the serological evidence obtained from the crime scenes in 1977 and 1978, shortly after the rape/murders had been committed. His trial testimony took place on August 15, 1986, over eight years later. Due to this passage of time, he could not testify without reading his notes and work sheets to refresh his recollection.
As indicated, supra, the Cofer rape/murder was not charged in Gary's indictment. The episode was introduced into evidence to establish modus operandi and identity.
Carlton GARY, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.
Nos. 09-16198, 11-10705 and 11-15396.
United States Court of Appeals, Eleventh Circuit.
July 12, 2012.
Michael K. McIntyre (Court-Appointed), John R. Martin (Court-Appointed), Martin Brothers, P.C., Atlanta, GA, for Appellant.
Patricia Beth Attaway Burton, State of Georgia Law Dept., Theresa Marie Schiefer, Atlanta, GA, for Appellee.
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
[OPINION BY TJOFLAT, Circuit Judge: type=majority]
TJOFLAT, Circuit Judge:
A state prisoner under a sentence of death, who petitions a United States District Court pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus, is entitled to the appointment of one or more attorneys if he is “financially unable to obtain adequate representation.” 18 U.S.C. § 3599(a)(2). “[E]ach attorney so appointed shall represent the [prisoner] throughout every subsequent stage of available judicial proceedings,” which includes “all available postconviction process, together with applications for stays of execution and other appropriate motions and procedures,” as well as “proceedings for executive or other clemency as may be available.” Id. § 3599(e). In addition, if the District Court “findfs] that investigative, expert, or other services are reasonably necessary for the representation of the [prisoner], whether in connection with issues relating to guilt or the sentence, the court may authorize the [prisoner’s] attorneys to obtain such services on behalf of the [prisoner] and, if so authorized, shall order the payment of fees and expenses.” Id. § 3599(f)-(g).
In this case, Carlton Gary is a Georgia prisoner on death row. Gary received the appointment of two attorneys under § 3599(a)(2) to prosecute his petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. After the writ was denied, and before Gary’s execution was to take place, the same attorneys represented Gary at a clemency hearing before the Georgia Board of Pardons and Paroles (the “Board”). Clemency was denied, but the Georgia Supreme Court stayed Gary’s execution to enable him to pursue a motion for deoxyribonucleic acid (“DNA”) testing in the court in which he was convicted and sentenced, the Superior Court for Muscogee County (the “DNA.motion”), and, depending on the outcome of the DNA motion, an extraordinary motion for a new trial under the authority of O.C.G.A. §§ 5-5-40 and 5-5-41. The Superior Court granted Gary’s DNA motion. The testing proceeded and yielded DNA evidence. Based upon this “newly discovered DNA evidence,” Gary began preparation of an extraordinary motion for new trial. The attorneys appointed pursuant to § 3599(a)(2) to represent Gary in the District Court and at the clemency hearing prosecuted the DNA motion and are preparing, and intend to prosecute, his extraordinary motion for a new trial.
In these three appeals, Gary challenges three orders. Appeal No. 09-16198 arises from the District Court’s denial of a motion for funds to pay two experts to appear in person at Gary’s clemency hearing, Dr. Thomas David and Mr. Roger Morrison; Appeal No. 11-10705 involves the District Court’s partial denial of a voucher submitted by Gary’s counsel for payment of services rendered in pursuing the extraordinary motion for a new trial; and Appeal No. 11-15396 addresses the District Court’s denial of a motion for funds to pay an expert, Dr. Greg Hampikian, to assist Gary’s attorneys in connection with the DNA motion.
To address these appeals, it is necessary to briefly recall the criminal conduct that led to Gary’s death-row status and the rulings the District Court made in denying Gary’s petition for a writ of habeas corpus, for they provide the background against which the District Court made the decisions Gary challenges.
I.
A.
Carlton Gary was convicted by a jury in Muscogee County on August 27, 1986, on three counts each of murder, rape, and burglary. He was sentenced to death on each of the murder counts. The Georgia Supreme Court, in affirming his convictions and death sentence, described what led to the convictions:
Police had no viable suspects in the case until 1984, when a gun stolen from the Wynton area in 1977 was discovered in Michigan — a consequence of that state’s gun registration laws — in the possession of Carlton Gary’s cousin. After further investigation, Gary was arrested for burglary on May 3, 1984. His fingerprints matched those taken from the scenes of four of the murders.
Gary admitted to law enforcement officers that he was present at seven of the crime scenes (the eighth he could not remember), but claimed he was only a burglar. He blamed the murders on another[, a boyhood friend, M.C.]. Further investigation revealed that in other instances in New York and in South Carolina, Gary had committed violent crimes and blamed others. For example, he raped and murdered an 89 year old woman in her home in Albany, New York in 1970. His fingerprints were found at the crime scene. Gary claimed one J.M. committed the murder. M., however, was acquitted by a jury. In another New York crime involving rape and burglary, Gary admitted only to being a “lookout” and blamed the rape on another. In all these cases, no evidence other than Gary’s own statements and testimony supported his claim that another person was involved in the crime with him.
Gary v. State, 260 Ga. 38, 389 S.E.2d 218, 219-20 (1990).
B.
After the United States Supreme Court denied his petition for a writ of certiorari, Gary v. Georgia, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990), and the Georgia courts denied him habeas corpus relief, Gary petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Two of the claims Gary presented in his habeas petition are germane here. One was that the Georgia Supreme Court misapplied Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), in affirming the trial court’s denial of his request for funds to hire a forensic serologist; the other was that the Georgia Supreme Court erred, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in finding that the State’s failure to produce pretrial a bite-mark exemplar made from tooth marks on one of the victim’s breasts was not material to the defendant’s guilt. Gary v. Hall, 558 F.3d 1229, 1248^9 (11th Cir.2009). Gary argued that he needed a forensic serologist to show that he could not have been the source of the semen found at the scenes of two of the murders for which he had been convicted and two of the murders that had been introduced as collateral, uncharged crimes. Similarly, he needed the bite-mark exemplar to show that the marks on another victim’s breast — the victim of one of the four uncharged crimes — were not his.
The district court held ... hearings on Gary’s [request for a forensic serologist], some of which involved the serological evidence — semen and blood — the police had found at four of the murder scenes. The evidence had been introduced at trial through the testimony of a GBI Crime Lab serologist, John Wegel, who testified that Gary may or may not have been the secretor. At one of the hearings, the district court considered the significance of Wegel’s notes and work papers. Habeas counsel insisted that they could prove that Gary was not the secretor if the court provided them with funds to employ a forensic serologist to analyze Wegel’s notes and work papers. The court provided counsel with $2,000 for that purpose.
After counsel obtained the services of a serologist, Roger Morrison, they requested an evidentiary hearing. The court granted their request and held a hearing in which Wegel and Morrison explained and commented on the adequacy of the tests Wegel conducted in analyzing the semen. Wegel testified that the donor of the semen was a weak or non-secretor; Morrison testified that he had examined Gary’s saliva and concluded that Gary was a normal secretor, implying that he could not have been the source of the semen. Wegel countered Morrison’s conclusion by stating (1) that secretion levels vary over time and that eighteen years had passed between the dates the donor deposited the semen and the date of Morrison’s examination, and (2) that secretion levels of semen and saliva may differ and that, while Wegel examined semen, Morrison examined saliva. At the conclusion of the hearing, habeas counsel moved the district court for funds to have Gary’s semen tested by Morrison and the results of the test introduced into evidence. The court denied the motion.
Gary, 558 F.3d at 1248-49 (internal footnote omitted). We affirmed. Id. at 1254.
The District Court held an evidentiary hearing on Gary’s bite-mark claim. “The court indulged the assumption that, if armed with the exemplar, defense counsel, with the assistance of a forensic odontologist, could have, at the very least, cast doubt on whether the bite marks were Gary’s.” Id. at 1256-57. Nonetheless, the court concluded that the unavailability of the bite mark exemplar “d[id] not undermine confidence in the verdict and sentence determined by the jury,” id. (internal citation omitted), and thus denied the claim. We affirmed the court’s denial of the claim. Gary, 558 F.3d at 1248-49. Our reasons for doing so no doubt informed, at least in part, the District Court’s exercise of discretion in denying Gary’s request that the District Court provide him with funds to present the expert testimony of Dr. Thomas David at his clemency hearing.
As for the bite mark exemplar, we ... examine why, according to the State, the exemplar was not shown to the defense prior to trial. The exemplar was created after the body of rape and murder victim Janet Cofer was discovered on April 19, 1978. Dr. Joe Weber, a Crime Lab pathologist, while assisting Coroner Kilgore in performing an autopsy of the body the same day, observed “what appeared to be tooth marks” on the left breast. He consulted an odontologist, Dr. Carlos Galbreath, and Galbreath created an impression of the bite marks with rubber gel and a syringe. After the gel hardened, Galbreath made an exemplar of the bite mark impression, the standard procedure in dentistry for creating a permanent mold of impressions of teeth. The exemplar was stored in the Coroner’s Office until July 6, 1984, when the Columbus Police Department took possession of the exemplar after Gary was taken into custody.
Shortly after Gary’s indictment, the prosecutors took the exemplar to a forensic dentist, Dr. Thomas David. He examined the exemplar and concluded that no reliable comparison could be made between the exemplar and Gary’s teeth because Gary had undergone dental work since the last of the rape/murders. The prosecutors accepted Dr. David’s opinion and decided against introducing the bite mark exemplar as evidence at Gary’s trial. Hence, they returned the exemplar to the Coroner’s Office. Although Gary’s trial counsel had read the report of the Cofer autopsy and thus knew of the bite mark, they were not aware that an exemplar of the bite mark had been made or that the prosecutors were privy to Dr. David’s opinion that no reliable comparison could be made between Gary’s teeth and the bite mark.
Given this, it is clear that the State, i.e., the Coroner’s Office, had the bite mark exemplar and that, even with reasonable diligence, defense counsel could not have obtained it. The record is unclear, however, as to whether the exemplar constituted exculpatory evidence, given the dental work Gary underwent between the time of the Cofer rape/murder and his arrest and prosecution. Moreover, it is unlikely that Gary has shown a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” [United States v.] Bagley, 473 U.S. [667,] 682, 105 S.Ct. [3375,] 3383[, 87 L.Ed.2d 481 (1985)]. Even if Gary had access to the exemplar at trial, he could only have shown that the bite marks were inconclusive; because of the intervening dental work, any bite mark comparison would neither identify nor exclude him as the perpetrator of the Cofer crime. The jury, in fact, actually heard evidence that the bite marks were inconclusive. Dr. Weber, the State’s pathologist, testified that the marks neither conclusively proved or disproved that Gary was the perpetrator. Taken in context with the other evidence, including Gary’s confession that he was at the Cofer residence when she was murdered, there exists no “reasonable probability” that the admission of an inconclusive bite mark exemplar would have changed the outcome of the proceeding.
Gary, 558 F.3d at 1256-57.
C.
This brings us to the appeals at hand. We consider them in turn, starting with Appeal No. 09-16198.
II.
A.
On November 30, 2009, the United States Supreme Court denied Gary’s petition to review this court’s decision affirming the District Court’s denial of habeas relief. A few days later, the State scheduled Gary’s execution for December 16, 2009, and the Board scheduled a clemency hearing for December 14, 2009.
On December 9, 2009, Gary moved the District Court for the provision of funds for two experts to appear in person at the clemency hearing, Dr. Thomas David and Roger Morrison. His attorneys would be representing him at the clemency hearing (pursuant to their § 3599(e) appointment), and, according to his motion, the live opinion testimony of these experts was, within the intendment of § 3599(f), “reasonably necessary” to enable the attorneys to provide effective assistance of counsel at the hearing. 18 U.S.C. § 3599(f).
Gary asserted that the funds were “reasonably necessary” because Dr. David’s and Roger Morrison’s opinions would likely create doubt- as to his guilt. He asked for $500 to enable Dr. David to appear and opine that a comparison of the bite mark exemplar 'taken from victim Cofer’s left breast to an exemplar of Gary’s teeth made it “more likely than not” that Gary was not “the person who ... left [the] bite mark on Ms. Cofer’s breast.” Gary sought $2,000 to have Morrison testify to the testing of semen samples found on other victims. Morrison would opine that, based on a comparison of Gary’s saliva to the semen samples, Gary could not have been the secretor of the semen. Gary concluded his motion by stating that, in denying his § 2254 petition for habeas corpus relief, “this Court may have disagreed with or minimized the conclusions of [the two experts], but [their] testimony is nevertheless important for the [Board] to make its independent and quite different decision.”
The District Court denied Gary’s motion, concluding that Gary simply wanted to relitigate in another forum the precise issues the court had rejected previously. Indeed, Gary admitted as much; he merely wanted the Board to conduct an “independent” review of the evidence the District Court had considered, hoping that the Board would reach a “quite different decision.” Thus, given that Gary merely wanted to relitigate two of his habeas claims, the court found that the appearance of the two experts in person before the Board was not “reasonably necessary.” He could present the Board with the transcriptions of the testimony the experts had presented in the hearings held on his § 2254 petition. Gary immediately appealed the court’s ruling; meanwhile, the experts appeared at the clemency hearing on December 14.
B.
Gary argues that the District Court abused its discretion in denying the requested funds on the ground that he wanted to relitigate the bite mark and semen issues before the Board. Raising doubt as to one’s guilt, he submits, is not inappropriate at a clemency hearing. Therefore, the experts’ appearance was “reasonably necessary” to effectively present that argument.
We have interpreted the § 3599(f) phrase “reasonably necessary” to mean the same as showing a “ ‘substantial need’ for the requested assistance.” Brown, 441 F.3d 1330, 1364 (11th Cir.2006) (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.2004)). Gary contends that requiring the Board to rely on the transcripts of the testimony the experts gave during the § 2254 proceedings would prevent the Board from reaching a fully informed decision. Live testimony was needed to determine “whether there [we]re sufficient doubts about [his] guilt” that would justify a commutation of his sentence. The witnesses needed to appear in person so that the Board could “judge [their] credibility” and “ask questions regarding what are sometimes complicated and difficult to understand issues.”
The problems Gary raises are not significant, nor are they unique to a clemency proceeding. The decisions of courts and adjudicative bodies are frequently made on cold records. Thus, the mere fact that the Board might have been better able to assess the credibility of Gary’s experts if they appeared in person did not mean that their appearances were per se “reasonably necessary,” and that testimony they previously gave under oath in an adversary proceeding before the District Court would not suffice. Indeed, the Board itself, through regulations it has promulgated, has recognized the fact that live testimony is not essential to its consideration of a clemency application. Under its regulations, the Board may decide not to hold a clemency hearing at all, and may consider an application for commutation on the paper record alone. See Ga. Comp. R. & Regs. § 475 — 3—.10(2)(b).
We find no abuse of discretion here. It is apparent from Gary’s submissions to the District Court, and to this court on appeal, that the opinions Dr. David and Morrison would express at the clemency hearing were simply a reiteration of the opinions they gave before the District Court. In sum, we conclude that the District Court did not abuse its discretion in concluding that Gary failed to show that the experts’ personal appearances before the Board were “reasonably necessary” to enable his attorneys to adequately to represent him before the Board. The District Court’s decision denying the requested funds is accordingly affirmed.
III.
Appeal No. 11-10705 arises from the denial of a “CJA 30 Death Penalty Proceedings” fee voucher (“CJA 30” voucher) Gary’s appointed counsel submitted to the District Court on December 1, 2010. The District Court, in an order issued on December 10, 2010, authorized payment for 12.3 hours of work performed in connection with Gary’s clemency hearing, but denied payment for 16.9 hours spent researching, drafting, and revising an extraordinary motion for a new trial based on the DNA motion. Gary moved the District Court to reconsider its denial of payment for the 16.9 hours of work. The motion was denied in an order entered on January 21, 2011. Gary appeals that order.
We first must ask whether we have jurisdiction to hear this appeal. Ray v. Edwards, 725 F.2d 655, 658 n. 3 (11th Cir.1984) (stating that “[t]his court has a duty to review its jurisdiction of an appeal”). Our jurisdiction, if any, must be based on the provisions of 28 U.S.C. §§ 1291 or 1292. Section 1292 is plainly inapplicable. See 28 U.S.C. § 1292 (authorizing review of interlocutory decisions, decisions related to injunctions, receiverships or admiralty matters, and issues certified for appeal). Accordingly, if we have jurisdiction, it must lie under § 1291. Section 1291 gives the courts of appeals “jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. The question, therefore, is whether the District Court’s January 21, 2011, order is a final decision.
In United States v. Rodriguez, 833 F.2d 1536, 1537-38 (11th Cir.1987), we concluded that a district court’s decision denying an appointed attorney’s application for compensation under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A(d) was not a final decision reviewable under § 1291. We believe that Rodriguez applies with equal force to an appointed attorney’s application for compensation under § 3599(e) for several reasons. First, the procedure to approve compensation set out by each statute is essentially a mirror image of the other. Each statute gives the district court the initial and primary responsibility for appointing counsel for indigent defendants or habeas petitioners and determining the compensation counsel is to receive. Moreover, both statutes require “the chief judge of the circuit” to approve compensation in excess of the statutory limits. Compare 18 U.S.C. § 3006A(d)(3) (outlining process for authorization of attorneys fees in excess of statutory cap) with 18 U.S.C. § 3599(g)(2) (describing process for authorization of expert fees in excess of statutory maximum). Second, the text and legislative history of both statutes omits any provision for the appeal of an order approving or disapproving the payment of attorney’s fees. Third, the District Court’s ruling under both statutes is made in an administrative, not a judicial context. Judicial decisions are rendered in an adversary proceeding. In contrast, a decision approving or disapproving a fee voucher is made without notice to any other interested party, for the court’s disposition of the voucher does not turn on the outcome of the litigation between the parties. The controversy, if one exists, is between the dissatisfied attorney and the District Court.
In sum, we conclude that a District Court’s partial denial of a CJA fee voucher is not a final decision for the purposes of § 1291. Appeal No. 11-10705 must be dismissed for lack of appellate jurisdiction.
rv.
We now address Appeal No. 11-15396. Gary moved the Superior Court of Muscogee County, pursuant to O.C.G.A. § 5-5-41(c), to order DNA testing of vaginal contents or vaginal washings obtained from some of the victims. On February 19, 2010, the Superior Court ordered limited DNA testing of samples taken from three victims. On May 24, 2010, Gary asked the District Court to provide funds pursuant to § 3599(f) for a DNA expert, Dr. Greg Hampikian, to assist counsel in moving the Superior Court to order additional DNA testing. On June 4, 2010, the District Court entered an order providing funds not to exceed $7,500 to pay Dr. Hampikian. On August 19, 2011, Gary asked the District Court to provide an additional $3,500 for Dr. Hampikian in anticipation of the Superior Court’s authorization of another round of DNA testing. The District Court denied this request. The court concluded that, in light of the Supreme Court’s decision in Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), the DNA testing ordered by the Superior Court pursuant to O.C.G.A. § 5-5-41(c) was not a postconviction process covered by § 3599(e), even though Gary filed the motion subsequent to the initiation of his § 2254 case. Thus, since the DNA Motion was outside the scope of Gary’s lawyers’ § 3599(a)(2) appointment, the lawyers could not obtain funds pursuant to § 3599(f) for Dr. Hampikian’s services.
Gary appeals the District Court’s decision, arguing that the denial of funds for the expert denies him the effective assistance of counsel in obtaining the DNA testing in the Superior Court of Muscogee County, a postconviction proceeding he claims is within the intendment of § 3599. We have jurisdiction to entertain his appeal. We review the District Court’s interpretation of § 3599 de novo. See United States v. Dodge, 597 F.3d 1347, 1350 (11th Cir.2010) (en banc).
A.
As in all cases involving the interpretation of a statute, we begin with the language employed by Congress. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. -, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). Here, the language of the statute is indeed broad. Section 3599 authorizes the appointment of counsel for an indigent prisoner who seeks a writ of habeas corpus setting aside a death sentence, see 18 U.S.C. § 3599(a)(2), and requires that counsel continue to represent the prisoner “throughout every subsequent stage of available judicial proceedings,” including “all available postconviction process,” id. § 3599(e) (emphasis added).
The Supreme Court had occasion to interpret this statute in Harbison v. Bell. In Harbison, the Court said that § 3599 provides indigent defendants with “federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.” 556 U.S. at 194, 129 S.Ct. at 1491. Significantly, however, the Court read the language of § 3599 to limit the right to federally-funded representation in several important ways. The Court found that the language of § 3599(e) listed responsibilities of appointed counsel sequentially, concluding that an indigent prisoner is entitled to counsel’s representation only for those judicial proceedings that ordinarily occur subsequent to counsel’s appointment. Id. at 188, 129 S.Ct. at 1488. The Court reasoned
when [counsel] is appointed pursuant to (a)(2), [counsel’s] representation begins with the § 2254 or § 2255 “postconviction process.” Thus, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to her appointment. It is the sequential organization of the statute and the term “subsequent” that circumscribe counsel’s representation ....
Id. For counsel appointed to represent an indigent § 2254 petitioner, such as Gary, the relevant starting point is the filing of the habeas petition — an indigent petitioner standing in Gary’s shoes may receive § 3599 funding only for those proceedings that ordinarily occur subsequent to that starting point.
Elaborating on this limitation, the Court emphasized that an indigent habeas petitioner is not entitled to representation for all proceedings that occur subsequent to his attorney’s appointment. Id. at 189-90, 129 S.Ct. at 1488-89. Specifically, the Court discussed a situation where a state proceeding that ordinarily occurs before the filing of a federal habeas petition occurs afterward instead. Such a proceeding, although initiated subsequent to the filing of the federal habeas petition, is not within the scope of § 3599 funding. The Court explained:
The Government likewise argues that our reading of § 3599(e) would require federally funded counsel to represent her client in any state habeas proceeding occurring after her appointment because such proceedings are also “available postconviction process.” But as we have previously noted, subsection (e) authorizes counsel to represent her client in “subsequent” stages of available judicial proceedings. State habeas is not a stage “subsequent” to federal habeas. Just the opposite: Petitioners must exhaust their claims in state court before seeking federal habeas relief. That state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust does not change the order of proceedings contemplated by the statute.
Id. (internal citation omitted).
The Court noted, however, that the language of the statute does contemplate some limited federal funding of counsel in state court proceedings. In one footnote, the Court stated that the “other appropriate motions and procedures” language in § 3599(e) indicated that a District Court may determine that counsel appointed to represent a habeas petitioner may need to “exhaust a [federal constitutional] claim [in state court] in the course of her federal habeas representation” and may be compensated for such work. Id. at 190 n. 7, 129 S.Ct. at 1489 n. 7. The Court was equally quick to note, though, that “[t]his is not the same as classifying state habeas proceedings as ‘available postconviction process’ within the meaning of the statute.” Id.
Gary disagrees, arguing for a broader reading of § 3599 and Harbison. His position is that the filing of the DNA motion is a “subsequent stage of a judicial proceeding” and “postconviction process.” It follows, he says, that because § 3599 requires that counsel be afforded for “every” subsequent stage of available judicial proceedings and for “all” available postconviction process, he has a right to federally funded counsel and expert assistance for this motion.
B.
We decline to adopt such a broad interpretation and conclude, instead, that § 3599 does not provide for federally-funded counsel to assist someone standing in Gary’s shoes in pursuing a DNA motion, the results of which might serve as the basis for an extraordinary motion for a new trial. As the language of § 3599(e) and the Court’s opinion in Harbison indicate, federally-funded counsel is available only for certain subsequent proceedings. A state court motion for DNA testing does not ordinarily follow the commencement of a federal habeas action and is, therefore, not a subsequent proceeding contemplated by § 3599(e), even when filed after the prisoner’s federal habeas case has concluded. The District Court, therefore, properly denied Gary’s motion for funds to pay for an expert to assist counsel in pursuing DNA testing.
Clemency proceedings and hearings on DNA motions are fundamentally different types of proceedings and should be treated differently for purposes of § 3599(a)(2). A clemency proceeding, by its nature, will typically occur subsequent to the prisoner’s unsuccessful collateral attack on the constitutional validity of his conviction or death sentence. See Ga. Comp. R. & Regs. § 475-3-.10(2)(b) (“Th[e] [clemency] decision will be made after it appears that all appeals through the courts have ceased or been exhausted or anytime within 72 hours of the earliest time the execution could take place even if court action is still pending.”). The “fail safe in our criminal justice system,” Herrera v. Collins, 506 U.S. 390, 415, 113 S.Ct. 853, 868, 122 L.Ed.2d 203 (1993) (internal quotation marks omitted), clemency is a proceeding of last resort for a prisoner before execution. It is, therefore, a unique species of proceeding that is typically subsequent to the conclusion of a § 2254 proceeding.
The nature and purpose of a DNA motion, however, is quite different. A motion for DNA testing under O.C.G.A. § 5-5-41(c) is generally filed in conjunction with an extraordinary motion for a new trial pursuant to O.C.G.A. § 5-5-41(a) once the thirty-day window for filing a new trial motion has closed. Nothing in the enabling statute, however, requires that the prisoner defer filing his motion for DNA testing and a new trial and until after his state and federal collateral attacks on his conviction (or sentence), if any, have run their course. To the contrary, a prisoner may move for DNA testing and a new trial at any time after thirty days have elapsed from the entry of judgment, so long as the prisoner presents “some good reason ... why the motion was not made during such [thirty-day] period” and satisfies the requirement that the motion for a new trial is “extraordinary.” See O.C.G.A. § 5-5-41(a)-(b). Thus, unlike a clemency proceeding, there is nothing inherent in a state trial court’s entertainment and consideration of a motion for DNA testing or an extraordinary motion for new trial that indicates such a motion ordinarily follows the commencement of a federal habeas petition. In deciding whether Congress intended that § 3599 provide the basis for funding the prosecution of Gary’s motions for DNA testing and for a new trial, we do not consider, because it is irrelevant, that Gary waited to file those motions until after the United States Supreme Court denied review of this courts’ affirmance of the District Court’s decision denying § 2254 relief. In sum, a DNA motion and an extraordinary motion for a new trial do not ordinarily follow the appointment of counsel in a federal habeas petition and thus are not subject to funding under § 3599.
Gary relies on a footnote in Harbison in arguing that § 3599 could provide for federal representation in a state court proceeding commenced by a prisoner after he has petitioned a federal district court for a writ of habeas corpus. The footnote reads, in full:
Pursuant to § 3599(e)’s provision that counsel may represent her client in “other appropriate motions and procedures,” a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation. This is not the same as elassifying state habeas proceedings as “available postconviction process” within the meaning of the statute.
556 U.S. at 190 n. 7, 129 S.Ct. at 1489 n. 7.
The Court is describing a scenario in which the prisoner has filed a mixed § 2254 petition, in that it contains constitutional claims that have been exhausted in state court as well as claims that have not been exhausted and the state courts would still entertain them. In this scenario, the district court is likely to stay the litigation of the habeas case while the prisoner repairs to state court to exhaust the unexhausted claim. Footnote 7 simply acknowledges that the district court, in the exercise of its discretion, may authorize § 3599 counsel to prosecute the unexhausted claim in state court.
This case at hand clearly does not present the scenario contemplated by that footnote. It is one thing for a district court to determine, in its discretion, that it is necessary for court-appointed counsel to “exhaust a claim [in state court] in the course of her federal habeas representation,” id., so that counsel can go forward with her prosecution of the prisoner’s federal habeas petition. It is quite another matter, however, for an indigent prisoner to expect federally-funded counsel to initiate an entirely new state court proceeding to obtain relief from a conviction and death sentence on a state law ground — in Gary’s case, on the ground of newly discovered evidence. The filing of Gary’s DNA motion had nothing to do with “exhausting]” a federal constitutional claim in state court so that the District Court could consider it on the merits in adjudicating Gary’s § 2254 petition. Gary’s claim that he is entitled to DNA testing as a matter of Georgia law was not, and could not have been, included as a claim in his § 2254 petition.
Finally, we note that there are sound policy reasons why Congress would not provide for federally-funded counsel in independent state court proceedings. Two reasons stand out: first, such funding would raise troubling federalism concerns; and second, the funding would create significant practical problems. The Supreme Court has explained on numerous occasions the importance of “the fundamental policy against federal interference with state criminal prosecutions,” Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971), and emphasized that “the States’ interest in administering their criminal justice systems free from federal interference” is a critical concern of federalism. See Kelly v. Robinson, 479 U.S. 36, 49, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986); see also Arizona v. Manypenny, 451 U.S. 232, 243, 101 S.Ct. 1657, 1665, 68 L.Ed.2d 58 (1981) (“Because the regulation of crime is pre-eminently a matter for the States, we have identified ‘a strong judicial policy against federal interference with state criminal proceedings.’ ” (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 600, 95 S.Ct. 1200, 1206, 43 L.Ed.2d 482 (1975))). Proper respect for the principles of federalism is no less important in the context of federal habeas review of a state prisoner’s death sentence. See Coleman v. Thompson, 501 U.S. 722, 726, 111 S.Ct. 2546, 2552, 115 L.Ed.2d 640 (1991) (“This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.”). Providing court-appointed counsel to prisoners challenging their convictions in state court after they have been denied § 2254 relief would put the district courts in the position of overseeing, and thus indirectly managing, counsel’s performance in the state court proceeding. Interference, or at least the appearance of interference, would be inevitable. This could occur in various contexts, including when a district court (1) reviews counsel’s CJA 30 vouchers to determine the reasonableness of the requests for compensation; (2) acts on counsel’s motions, pursuant to § 3599(f), for the provision of investigative, expert, or other services “reasonably necessary” for counsel’s representation of the prisoner; (3) rules on counsel’s motion to withdraw from the prisoner’s representation; or (4) considers a prisoner’s motion to discharge counsel and appoint substitute counsel. Moreover, as a practical concern, in order to pass on the merits of any of these motions or requests, a district judge would have to become acquainted with the issues presented in the state court proceeding despite the fact that the judge may not have confronted them — either directly or indirectly — in adjudicating the prisoner’s habeas claims.
Based on our reading of § 3599, the language of Harbison clearly limiting the provision of federally-funded counsel, and obvious public policy concerns, we conclude that § 3599 does not provide for the appointment of counsel to prosecute the state postconviction motion pending in the Superior Court of Muscogee County.
V.
For the reasons set out above, we DISMISS Appeal No. 11-10705, and we AFFIRM the District Court’s decision in Appeals Nos. 09-16198 and 11-15396.
SO ORDERED.
[OPINION BY WILSON, Circuit Judge, type=dissent]
WILSON, Circuit Judge,
dissenting:
The majority’s disposition of this case delivers a powerful blow to the far-reaching guarantees of representation and expert assistance embodied in 18 U.S.C. § 3599. In the course of the opinion, it unnecessarily forecloses expert funding for practically any individual represented by § 3599 counsel, misstates this circuit’s jurisdictional precedent, and misinterprets the scope of a federal statute. I cannot join in its disposition of these appeals.
I
Gary sought to utilize the clemency hearing to cast doubt on his guilt for the charged crimes. The means by which this could be accomplished entailed the presentation of medical testimony that neither (1) the bite mark on one victim nor (2) the semen found on another victim was consistent with Gary being the perpetrator. The two experts, Gary contends, would testify at the hearing to the high probability that those pieces of evidence were inconsistent with Gary’s biology. Because the majority finds that the request for experts merely encompassed “reiteration of the opinions [the experts] gave before the District Court,” it concludes that the experts were not reasonably necessary to the clemency-hearing representation. Maj. Op. at 1270. This holding fails to appreciate the unique character of clemency, as opposed to federal habeas, and broadly forecloses funding for expert testimony that has previously been presented to any court.
The clemency board’s “view of a case necessarily differs from that of a local court or law enforcement agency.” Georgia State Board of Pardons and Paroles, Clemency, http://www.pap.state.ga.us/ opencms/export/sites/defaulVclemeney/ (last visited June 18, 2012); see also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 284, 118 S.Ct. 1244, 1251, 140 L.Ed.2d 387 (1998) (plurality opinion) (recognizing the differences between judicial and clemency proceedings). Clemency proceedings operate unconstrained by the strictures of AEDPA and federal rules of evidence and procedure. Unlike the federal courts, the clemency board can base its decision on information never presented to state courts for adjudication. That consideration is particularly relevant where, as here, the factual basis of an argument has been developed almost exclusively in federal court. See Cullen v. Pinholster, 563 U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (“[RJeview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”). The clemency board obtains an accurate portrayal of the expert opinions by asking questions without concern for federal evidentiary rules, by judging the credibility of the experts, and then by weighing their conclusions against the other facts and testimony from the course of proceedings. The clemency board, unlike the courts, is not chained to the credibility findings of any prior adjudicative body. See Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir.1980) (“One of the most important principles in our judicial system is the deference given to the finder of fact who hears the live testimony of witnesses because of his opportunity to judge the credibility of those witnesses.”). The clemency process has been set apart as “provid[ing] the ‘fail safe’ in our criminal justice system” when traditional channels of review are exhausted, Herrera v. Collins, 506 U.S. 390, 415, 113 S.Ct. 853, 868, 122 L.Ed.2d 203 (1993), and its independent nature necessarily fosters this role as the final stop before execution of a capital sentence.
To deny expert funding on the ground that the testimony has already been presented during the course of collateral review is to render § 3599(f) nearly meaningless. The majority holds that expert services are not “reasonably necessary” for representation in a clemency proceeding because that testimony is available in the form of a transcript. But won’t this always be the case? The substantive-type claims for which experts are requested will almost certainly have served as a ground for relief in state postconviction and federal habeas proceedings, and transcripts of that testimony would be available to a clemency petitioner. A death-sentenced inmate would be ill advised to hold on to potentially meritorious claims in hopes that they could serve as the basis of a compelling clemency petition. The majority’s reasoning on this point requires denial of the overwhelming majority of (if not all) requests for expert assistance at a clemency hearing because none will be “reasonably necessary.” And it is particularly unjust here, as Gary had no indication that during federal habeas proceedings his counsel should be developing testimony for an actual innocence claim to present to a clemency board. The majority’s interpretation renders § 3599(f)’s authorization for expert services meaningless- — -no indigent death-sentenced petitioner can meet the “reasonably necessary” threshold to even be considered for funding.
In a footnote, the majority recognizes two cases as disposing of a similar issue involving duplicative testimony. Neither offers a convincing parallel to the issue we confront. The majority points to Fautenberry v. M., 572 F.3d 267, 269-71 (6th Cir.2009), as affirming the district court on the ground that the evidence was cumulative. Maj. Op. at 1269 n.16. The district court in that case “concluded ... that the service requested was not ‘reasonably necessary’ because Fautenberry had provided no reasons to explain why it would be necessary.” Id. at 269. The Sixth Circuit likewise held that, based on the petitioner’s failure to put before the district court any argument regarding reasonable necessity, there was no abuse of discretion notwithstanding his relevant arguments to the court of appeals. Id. at 270 (explaining that Fautenberry “did not argue to the district court” the reasonable necessity of the services); id. at 272 (Moore, J., concurring) (“The majority is correct ... that Fautenberry did not present this argument to the district court. I therefore cannot say that the district judge abused his discretion based on the record before him.”). A fair reading of that case reveals that the court’s affirmance is not dependent on the cumulative nature of the expert services requested. Nor is Smith v. Dretke persuasive, as that case found that expert testimony requested for use in federal habeas proceedings was supplementary to that already presented to the state court. 422 F.3d 269, 288-89 (5th Cir.2005). As explained above, federal habeas proceedings necessarily involve a different inquiry than clemency, which can consider a wealth of information above that of federal courts. Smith is therefore uninformative to our the determination of what is “reasonably necessary” for representation in a state clemency proceeding.
In arriving at its conclusion, the majority construes the statutory phrase “reasonably necessary” to require a “substantial need” for the requested expert services. See Maj. Op. at 1269. This standard is derived from Fifth Circuit case law, e.g. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.2004), which we cited in United States v. Brown, 441 F.3d 1330, 1364 (11th Cir.2006). In Brown, although we identified that “the Fifth Circuit has held that the statute requires the defendant to demonstrate ‘substantial need’ for the requested assistance,” 441 F.3d at 1364, we did not utilize the “substantial need” standard to decide that appeal. Nor did we even mention the word substantial in the context of evaluating the claim. See id. at 1363-65. Circuit precedent therefore does not require application of this standard, and I do not read the majority opinion here to actually invoke that standard, since it makes an appearance only in passing. Nor should it do so, as elevating the standard from “reasonable” to “substantial” implies that the movant must carry a heavier burden than that contemplated by the statute.
I do not by any means imply that expert testimony is always “reasonably necessary” to representation of a clemency petitioner. But I cannot justify depriving a death-sentenced individual of live, unconstrained, expert testimony on the ground that reciting it from a transcript is an adequate substitute. The duty of the clemency board is to make an independent determination about the sentence that has been handed down to the petitioner, and I believe that the expert testimony seeking to cast doubt on Gary’s role in the crimes is reasonably necessary for representation in that proceeding. At the same time, I recognize that under the terms of the statute, the district court could find that expert services were reasonably necessary for representation but nevertheless deny funding. See 18 U.S.C. § 3599(f) (“Upon a finding that ... expert ... services are reasonably necessary for the representation of the defendant, ... the court may authorize the defendant’s attorneys to obtain such services .... ” (emphasis added)). I would thus vacate the district court’s order and remand to the district court to determine whether it will exercise its discretion to allow funding for these reasonably necessary services.
II
Next, in concluding that we lack jurisdiction to review the district court’s order denying reconsideration of its denial of funding, the majority reinterprets circuit precedent to the point of nonrecognition. At the outset, I must clarify what the district court did — and did not — decide in its January 21, 2011 order at issue in Appeal No. 11-10705. The district court interpreted 18 U.S.C. § 3599 as authorizing an appointed attorney “to continue to represent [the petitioner] throughout all available federal habeas proceedings and in state clemency proceedings.” Gary v. Humphrey, No. 97-181, 2011 WL 205772, at *6 (M.D.Ga. Jan. 21, 2011) (emphases omitted). Because it concluded that the extraordinary motion for new trial (the “state motion”) at issue here was not the equivalent of clemency, the district court “rejecte[ed] any suggestion that federally funded counsel should be provided to pursue the extraordinary motion for new trial.” Id. at *7. It determined on the merits that a federal statute, 18 U.S.C. § 3599, does not extend to an attorney’s representation in a state proceeding that is not clemency. The district court did not issue an administrative-type order disapproving of a monetary amount requested for an attorney’s particular undertaking within the scope of his representation. The cases relied on by the majority involve precisely that latter situation that we are not faced with today, and I cannot join in its portrayal of that precedent as controlling the resolution of this appeal. The January 21 order was final as a conclusive limitation on the scope of a federal statute, regardless of whether Gary’s counsel used the “magic words” in requesting the disputed funds.
Pursuant to 28 U.S.C. § 1291, we have jurisdiction to consider “all final decisions of the district courts.” Where the litigation underlying a challenged order has been conclusively resolved, “[w]e treat the postjudgment proceeding as a free-standing litigation.” Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir.2010) (quotation omitted). “A postjudgment order is final for purposes of section 1291 only if the order disposes of all issues raised in the motion.” Id. In construing § 1291, “the requirement of finality is to be given a ‘practical rather than a technical construction.’ ” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949)).
Gary appeals from the order denying reconsideration of the denial of funds for his representation in the state motion for new trial. This was the only issue presented in the motion for reconsideration. In that order, the district court finally, conclusively, and expressly ruled that no payment would be authorized for appointed counsel’s work on the state motion— period. The district court based its decision on the conclusion that § 3599, in light of Harbison, did not extend to appointed counsel’s “pursuit of] an extraordinary motion for new trial.” Gary, 2011 WL 205772, at *7. This determination “finally settle[d] the matter in litigation,” Delaney’s Inc. v. Ill. Union Ins. Co., 894 F.2d 1300, 1305 (11th Cir.1990), which concerned the scope of federally funded representation authorized by § 3599. There was nothing ambiguous or tentative about the district court’s determination that would indicate that its ruling would be subject to a third, independent consideration at some future date. Cf. Thomas, 594 F.3d at 830 (holding that an order was not final where the district court did not conclusively rule either way on the postjudgment issue). I therefore conclude that the order denying reconsideration was final in the context of the postjudgment proceedings.
But I do not even have to independently arrive at this conclusion, as controlling precedent also confounds the majority’s jurisdiction-based dismissal. In Harbison, the Supreme Court resolved a question about the scope of representation under § 3599 as related to state clemency. The district court in that case issued an order practically indistinguishable from the one the district court issued here, finding conclusively that the scope of § 3599 did not contemplate federally funded counsel’s representation of a petitioner in state clemency proceedings. Compare Harbison v. Bell, No. 97-52, 2007 WL 128954, at *6-7 (E.D.Tenn.2007) (framing the issue as “whether [§ 3599] provides for federally-appointed counsel during state clemency proceedings”), with Gary, 2011 WL 205772, at *1 (“The issue presented ... is whether Petitioner is entitled to federally funded counsel to pursue his extraordinary motion for new trial.”). The Sixth Circuit recognized the appeal as challenging “a final order denying counsel in a clemency proceeding” and concluded that controlling precedent foreclosed the appeal on the merits. Harbison v. Bell, 503 F.3d 566, 570 (6th Cir.2007). In reviewing that decision, the Supreme Court made short shrift of any jurisdictional challenge, noting that “the District Court’s denial of Harbison’s motion to authorize his federal counsel to represent him in state clemency proceedings was clearly an appealable order under 28 U.S.C. § 1291.” Harbison v. Bell, 556 U.S. at 183, 129 S.Ct. at 1485. There is substantively no difference in the jurisdictional inquiry when considering the district court’s failure to extend § 3599 to state clemency proceedings on the one hand and a state motion for new trial on the other.
What is more, we have previously exercised jurisdiction to consider the scope of representation beyond clemency. In In re Lindsey, a panel of this court considered a petition for mandamus to require appointment of counsel for state proceedings concerning a death-sentenced inmate. 875 F.2d 1502 (11th Cir.1989) (Tjoflat, Vance, and Kravitch, JJ.) (reviewing the petition under the predecessor statute of § 3599). The petition in Lindsey “contested] only the district court’s refusal to appoint a psychiatrist and a lawyer ... to assist Lindsey in his pursuit of state-court remedies” for his competency-to-be-executed claim. Id. at 1505. In denying that petition on the merits, we construed the terms of the predecessor to § 3599 to not encompass “any proceedings convened under the authority of a State.” Id. at 1506. In doing so, we conclusively resolved a question of construction about the scope of representation under the federal statute, which the district court ruled was limited in scope to certain proceedings. See id. at 1506-07. That is exactly what we are asked to do here, and at least one other circuit has explicitly considered post-War-bison whether the scope of § 3599 extends to proceedings occurring after state clemency without questioning the propriety of jurisdiction under § 1291. See Irick v. Bell, 636 F.3d 289, 290 (6th Cir.2011) (reviewing “the district court’s order denying [petitioner] federally funded counsel with respect to his state competency-to-be-executed proceedings and his efforts to reopen state postconviction proceedings”), cert. denied, — U.S.-, 132 S.Ct. 575, 181 L.Ed.2d 424 (2011).
To justify dismissal, the majority cites to United States v. Rodriguez as broadly holding that “a district court’s decision denying an appointed attorney’s application for compensation under the [CJA] [is] not a final decision reviewable under § 1291.” Maj. Op. at 1270 (citing 833 F.2d 1536, 1537-38 (11th Cir.1987) (per curiam)). A brief glance at even just the introductory paragraph of Rodriguez makes its inapplicability obvious. In Rodriguez, the district court awarded a reduced amount of compensation for work done by an appointed attorney pursuant to his CJA representation — representation on matters within the scope of his CJA duties. 833 F.2d at 1537 & n. 1. Dissatisfied with the amount authorized, the appointed attorney appealed the district court’s “failure to certify a fee award in the amount requested.” Id. at 1537. We ruled that the district court’s “fee determination” was a type of “administrative action” — not a judicial decision— and therefore was not a final order under § 1291. Id.
An order administratively approving (or disapproving) of funds within the scope of an attorney’s federal representation is not remotely comparable to an order conclusively determining whether certain proceedings fall within the representation authorized by § 3599. The order on appeal in Rodriguez decided fees for work completed within the scope of the attorney’s authorized CJA representation. It did not involve an outright denial of funding for an appointed attorney’s particular undertaking, and it certainly did not construe the scope of a federal statute governing appointed counsel’s representation. Here, the district court expressly ruled that the requested fees were outside the scope of counsel’s § 3599 representation. It determined that no funds would extend to work completed on the state motion and thereby limited the scope of a federal statute. The majority portrays Rodriguez as definitively illustrating a principle that it arrives at only by selectively reading and expansively interpreting that case. I find it completely unrelated to the resolution of any issue presented in this appeal, as judicial construction of the scope of a federal statute can hardly be considered a mere “administrative” task.
The Fifth Circuit confronted a case in the same context as ours and explicitly recognized its jurisdiction to resolve the issue. See Clark v. Johnson, 278 F.3d 459 (5th Cir.2002). In Clark, the district court had previously appointed counsel for federal habeas representation under § 3599’s predecessor, § 848(q)(8). Id. at 460. After Clark was executed, his attorney filed for reimbursement for “expenses incurred in connection with a state clemency proceeding brought on Clark’s behalf.” Id. In finding that the appellate court had jurisdiction, the Fifth Circuit explained:
The [district court’s] order fully and finally disposes of [counsel’s] request for reimbursement, an issue that is separate from the merits of the federal habeas corpus proceeding. The district court necessarily interpreted the meaning of “proceedings for executive or other clemency” under § 848(q)(8) to exclude state clemency proceedings. Such a decision is qualitatively different from approving or disapproving the amount of expenses reasonably and necessarily incurred by counsel as it definitively determines whether such services are compensable under the Act as a matter of law.
Id. at 461. Clark is indistinguishable from the issue at hand and demonstrates that we have jurisdiction to directly address Gary’s claim on the merits.
As a final thought, it seems that the majority’s conclusion that we may exercise jurisdiction over the district court’s denial of expert fees under § 3599(f) applies with equal force to permit review of the denial of representation under § 3599(e). The majority concludes that the district court had jurisdiction “to determine the scope of duties encompassed under the § 3599(a)(2) appointment,” including “whether the DNA motion fell within that ambit of representation.” Maj. Op. at 1273 n.26. It then concludes that we have jurisdiction under § 1291 to review that determination, but only in the context of its order denying expert fees. Id. The scope of counsel’s federal appointment is exactly what the district court decided in its January 21 order denying reconsideration. Strangely, the majority utilizes the denial of expert fees as a means to review the scope of counsel’s representation under § 3599(e), which produces the same result as if it had followed precedent and deemed the January 21 order final in the first place. It strikes me as more straightforward to treat the order actually limiting counsel’s representation as presenting the question of the reach of § 3599(e). Instead, the majority opts to foreclose on jurisdictional grounds future appeals concerning the scope of representation under § 3599 when the submission to the district court is styled as a request for compensation, even though the district court must necessarily make a definitive determination on the reach of the statute.
In sum, this is not a situation where the district court found that the petitioner was entitled to a lesser fee than claimed and reduced it accordingly; it is a case where, outright, the district court conclusively ruled that no fee was available under the statute for this work. I therefore find that we have jurisdiction to consider the denial of compensation for representation on the state motion.
Ill
I further disagree with the majority’s perceived limitation on the scope of § 3599, which is based neither in the text of the statute nor the rationale of Harbison. I recognize that, without consideration of the statute or case law, it appears strange at first glance for federally appointed counsel to receive federal funds for representation in a purely state proceeding. But that is what the Court approved in Harbison based on the language of § 3599 — language that the majority recognizes is “indeed broad” but then quickly narrows. And I conclude that the language of § 3599 and the Court’s Harbison decision require that appointed counsel represent Gary in the proceedings at issue.
A
Federal law entitles a federal habeas petitioner to appointment of counsel when he is financially unable to obtain adequate representation. 18 U.S.C. § 3599(a)(2). An appointed attorney’s duties are governed by subsection (e):
[Ejach attorney ... shall represent the [petitioner] throughout every subsequent stage of available judicial proceedings, including ... all available postconviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the [petitioner] in such competency proceedings and proceedings for executive or other clemency as may be available to the [petitioner].
18 U.S.C. § 3599(e) (emphases added). Harbison clarified that under the plain language of the statute, federally appointed counsel’s duties extend to state clemency proceedings. 556 U.S. at 185-86, 129 S.Ct. at 1486. Specifically, “[b]ecause state clemency proceedings are ‘available’ to state petitioners who obtain representation pursuant to subsection (a)(2), the statutory language indicates that appointed counsel’s authorized representation includes such proceedings.” Id. Georgia law permits each convicted individual to file one extraordinary motion for a new trial after thirty days have elapsed from entry of judgment in his criminal proceeding. O.C.G.A § 5-5-41(a), (b). Just as state clemency proceedings are “available” to state petitioners with § 3599 counsel, so too is a state motion for new trial an “available judicial proceeding[ ]” and, thus, encompassed by the plain language of the statute permitting representation in “other appropriate motions and procedures.” 18 U.S.C. § 3599(e); see Harbison, 556 U.S. at 188, 129 S.Ct. at 1487 (explaining that the word “available” “indicates the breadth of the representation contemplated” by the statute); see also Felker v. Turpin, 83 F.3d 1303, 1312 & n. 6 (11th Cir.1996) (describing an extraordinary motion for new trial as a “state avenue open to process the claim” made by petitioner (alteration and quotation marks omitted)).
The reach of § 3599 is not unbounded. Harbison informs us that the statutory term “subsequent” is the operative word to narrow the scope of § 3599(e) rather than any “strict division between federal and state proceedings.” 556 U.S. at 188, 129 S.Ct. at 1488; see also id. at 199, 129 S.Ct. at 1494 (Thomas, J., concurring in the judgment) (highlighting the “statute’s silence with respect to a ‘federal’ limitation”). This conclusion follows from the organization of § 3599(e), which “mirror[s] the ordinary course of proceedings for capital defendants.” Id. (majority opinion) (emphasis added). Therefore, the Court focused on the “sequential organization of the statute” to differentiate between a “subsequent stage” of judicial proceedings on the one hand and “the commencement of new judicial proceedings” on the other. Id. at 188-89, 129 S.Ct. at 1488. Representation under § 3599 is proper in the former, but not the latter, type of proceeding. See id. In this case, the extraordinary motion for new trial falls within the ambit of the “ordinary course of proceedings” for a death-sentenced petitioner.
One need only look to relevant case law in order to figure out that death-sentenced petitioners typically file these sorts of extraordinary motions for a new trial after conclusion of their federal habeas proceedings. See, e.g., In re Davis, 565 F.3d 810, 814 (11th Cir.2009) (per curiam) (petitioner filed the state motion after federal habeas proceedings); Felker, 83 F.3d at 1312 & n. 6; Blankenship v. Terry, No. 05-194, 2007 WL 4404972, at *42 (S.D.Ga. Dec. 13, 2007) (quoting state’s argument in federal habeas briefing that “[petitioner has an available remedy in state court to seek postconviction DNA testing” (emphasis added)); Jefferson v. Terry, 490 F.Supp.2d 1261, 1345 n. 24 (N.D.Ga.2007) (advising petitioner during federal habeas that he “can pursue a claim of actual innocence in state court by filing an extraordinary motion for new trial”), rev’d in part, 570 F.3d 1283 (11th Cir.2009); Crawford v. State, 278 Ga. 95, 597 S.E.2d 403, 403 (2004) (petitioner filed extraordinary motion after conclusion of federal habeas review). And this is a logical order, given the high standard for granting extraordinary motions for new trial, see Wright v. State, 310 Ga.App. 80, 712 S.E.2d 105, 107 (2011) (noting the six facts a movant must establish for the motion to be granted), and the discretionary procedure for review of their denial, see Crawford, 597 S.E.2d at 404. This motion, much like a clemency hearing, presents the state with a final chance to rectify any fundamental miscarriage of justice. The most appropriate time for an individual to file one of these motions would undoubtedly be after all the evidence has been investigated, the facts developed, and the arguments made in the traditional channels of review (i.e. state postconviction and federal habeas proceedings). Undoubtedly many cases are like this one, where the basis for the extraordinary motion was not fully developed until federal habeas counsel had been appointed. Cf. Harbison, 556 U.S. at 193, 129 S.Ct. at 1490-91 (“Congress likely appreciated that federal habeas counsel are well positioned to represent their clients in the state clemency proceedings that typically follow the conclusion of § 2254 litigation .... [T]he work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application.”). As a result, I have a hard time believing that habeas petitioners are jumping at the chance to file their one extraordinary motion for new trial before developing the facts and argument that would serve as its basis. If each death-sentenced individual is entitled to one of these motions, why would he rush to present it to the state courts before developing all the facts and arguments to support it?
Our analysis is also informed by looking to what would not be a subsequent stage of proceedings. In Harbison, the Supreme Court provides the quintessential example: state postconviction litigation. See id. at 189-90, 129 S.Ct. at 1488-89. This is because under Congress’s scheme governing federal habeas review, presentation of a claim to state courts is a prerequisite to federal review of that claim. Id. at 189, 129 S.Ct. at 1488; see 28 U.S.C. § 2254(b)(1). No provision of federal or state law requires a state extraordinary motion for new trial to precede federal habeas review, the point at which counsel’s appointment attaches under § 3599. Quite the opposite, one state motion can be filed at any time after the expiration of the thirty-day statutory period. See O.C.G.A. § 5-5-41(a), (b).
Instead of considering the “ordinary course” of proceedings for a death-sentenced inmate, the majority has crafted a novel standard whereby § 3599(e) is informed by the specific course of proceedings contemplated by the state in which the petitioner is imprisoned. In examining the representation at issue here, the majority relies almost exclusively on the idea that clemency comes after federal habeas proceedings have concluded, while the state motion for new trial can be filed at any time. Maj. Op. at 1276-78. But it is not so invariably true that clemency proceedings occur after the conclusion of federal habeas. In Utah, for example, a death-sentenced inmate can petition for clemency at any time after conclusion of the direct appeal. Utah Admin. Code r. 671-312-3(1); see also Conn. GemStat. § 54-130a(a), (b); State of Delaware, Rules of the Board of Pardons, http:// pardons.delaware.gov/information/rules. shtml#Rule7 (last visited June 15, 2012) (excluding death-sentenced petitioners from the typical rule that applications for commutation must follow the conclusion of collateral review); Louisiana Department of Public Safety and Corrections, Rules, http://www.doc.louisiana.gov/view.php? cat=13&id=83 (last visited June 15, 2012) (requiring under Rule ID that a petition for clemency be made within one year of denial of direct appeal); Washington State Clemency & Pardons Board Policies, http://www.governor.wa.gov/clemency/ documents/policies.pdf (last visited June 15, 2012) (stating that a petition for pardon or commutation generally “will not be heard until all direct appeals have been exhausted”). Thus, in a number of states, a prisoner may petition for clemency within the same relevant time frame as an inmate in Georgia can file the extraordinary motion for new trial. The Supreme Court did not consider these nuances in timing of a clemency petition to determine whether it “ordinarily” follows representation in federal habeas proceedings, and neither should we.
Additional considerations bear on the propriety of finding that § 3599 encompasses this request. The representation here involves work on an extraordinary motion for new trial — the only one that Gary can present under state law. If granted, the federal appointment must end because retrial is a new proceeding, and the state would be required to appoint counsel to Gary for retrial. Harbison, 556 U.S. at 189, 129 S.Ct. at 1488. Furthermore, the basis for this motion was developed pursuant to counsel’s representation in federal habeas proceedings, which means that counsel is already intimately familiar with the details and arguments. See id. at 193, 129 S.Ct. at 1491 (“[T]he work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application. Harbison’s federally appointed counsel developed extensive information ... that was not presented during his trial or appeals”). Lastly, the majority’s reasoning related to federalism — namely discomfort with federal supervision over purely state proceedings — applies with equal force to representation in clemency proceedings, and the Supreme Court has already considered and flatly rejected those concerns in Harbison. See id. at 192 n. 9, 129 S.Ct. at 1490.
Unlike state postconviction proceedings instituted after the conclusion of federal habeas review, the extraordinary motion for new trial does not constitute a new proceeding any more than state clemency would. It is merely one of the “multiple assurances that are applied before a death sentence is carried out.” Kansas v. Marsh, 548 U.S. 163, 193, 126 S.Ct. 2516, 2536, 165 L.Ed.2d 429 (2006) (Scalia, J., concurring). The limitation that the majority crafts is not found in the text of § 3599 or the direction of Harbison. Instead, it is a judgment that Congress must not have meant what it said when using broad phrases like “every subsequent stage,” “all available postconviction process,” and “other appropriate motions and procedures.” 18 U.S.C. § 3599(e). It is not up to us to determine whether the result of application of the statute “upholds a very bad policy.” Harbison, 556 U.S. at 198, 129 S.Ct. at 1494 (Thomas, J., concurring in the judgment) (quotation omitted). Section 3599 means what it says and covers counsel’s representation here.
B
The district court order denying funding for expert services, Appeal No. 11-15396, was premised on the conclusion that § 3599 does not cover counsel’s representation on the state motion. Because I find that it does, I would vacate its order and remand for consideration of whether those services were reasonably necessary to counsel’s representation under the statute and whether funding should be provided.
IV
The majority’s resolution of the issues presented here works to undermine the text of § 3599 and Supreme Court precedent. It also disturbs well-settled law governing our ability to review final orders. With its opinion, the majority offers up justification to foreclose a grant of expert assistance to practically all death-sentenced clemency petitioners, even though Congress has specifically provided for those services by statute in recognition of “the seriousness of the possible penalty and ... the unique and complex nature of the litigation.” 18 U.S.C. § 3599(d). It ignores the unquestionably broad language describing the scope of representation under § 3599 in favor of a state-specific approach inconsistent with Harbison. And it ensures that any rejection of funding for counsel to represent a death-sentenced individual in any proceeding apart from state clemency is unreviewable — unless, of course, it is appealed under the guise of a denial of expert funding. I disagree, and I would reverse the district court’s order limiting the scope of representation under § 3599(e), vacate the orders regarding expert services, and remand to the district court.
18 U.S.C. § 3599 addresses both persons under indictment and awaiting trial in federal court and state prisoners under a sentence of death who petition a United States District Court pursuant to 28 U.S.C. § 2254 for writ of habeas corpus. 18 U.S.C. § 3599(a) reads: (1) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either— (A) before judgment; or (B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment; shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f). (2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
18 U.S.C. § 3599(e) states: [E]ach attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available postconviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant. .18 U.S.C. § 3599(f) and (g) state: (f) 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). No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made a part of the record available for appellate review. (g)(1) Compensation shall be paid to attorneys appointed under this subsection at a rate of not more than $125 per hour for in-court and out-of-court time. The Judicial Conference is authorized to raise the maximum for hourly payment specified in the paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay for the General Schedule made pursuant to section 5305 of title 5 on or after such date. After the rates are raised under the preceding sentence, such hourly range may be raised at intervals of not less than one year, up to the aggregate of the overall average percentages of such adjustments made since the last raise under this paragraph. (2) 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, or by the United States magistrate judge, if the services were rendered in connection with the case disposed of entirely before such magistrate judge, as necessary to provide fair 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. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
Gary’s attorneys in his federal habeas case were John R. Martin and Michael K. McIntyre. They were originally appointed pursuant to 21 U.S.C. § 848(q)(4)(B). The relevant language of the two statutes is the same. We refer to their appointments as if they were made under § 3599 for the sake of clarity.
The DNA motion was filed pursuant to O.C.G.A. § 5-5-41(c). O.C.G.A. § 5-5-41(c) provides, in relevant part: (1) Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case, for the performance of forensic deoxyribonucleic acid (DNA) testing. (2) The filing of the motion as provided in paragraph (1) of this subsection shall not automatically stay an execution. (3) The motion shall be verified by the petitioner and shall show or provide the following: (A) Evidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction; (B) The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial; (C) The identity of the perpetrator was, or should have been, a significant issue in the case; (D) The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case; (E) A description of the evidence to be tested and, if known, its present location, its origin and the date, time, and means of its original collection; (F) The results of any DNA or other biological evidence testing that was conducted previously by either the prosecution or the defense, if known; (G) If known, the names, addresses, and telephone numbers of all persons or entities who are known or believed to have possession of any evidence described by subparagraphs (A) through (F) of this paragraph, and any persons or entities who have provided any of the information contained in petitioner's motion, indicating which person or entity has which items of evidence or information; and (H)The names, addresses, and telephone numbers of all persons or entities who may testify for the petitioner and a description of the subject matter and summary of the facts to which each person or entity may testify.
Georgia law requires that a motion for new trial be made before the expiration of a 30-day period from the entry of judgment. O.C.G.A. §§ 5-5-40(a), 5-5-41(a). If not made within that 30-day period, a motion for new trial shall not be "made or received unless the same is an extraordinary motion or case; and only one such extraordinaiy motion shall be made or allowed.” Id. § 5 — 5—41 (b).
The victims were Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. The crimes against them occurred, respectively, on October 21, October 25, and December 28, 1977. Gary v. Hall, 558 F.3d 1229, 1232-33 (11th Cir.2009). .In addition to the three victims Gary was charged with murdering, see supra note 7, the State also introduced evidence of four other murders as proof of preparation, plan, modus operandi and identity. Those four victims and the dates of their murders were Fern Jackson, September 16, 1977; Jena Dimenstein, September 24, 1977; Mildred Borom, February 12, 1978; and Janet Cofer, April 19, 1978. Gary, 558 F.3d at 1232-33. An eighth victim, R.S., was attacked on February 11, 1978 and survived; she did not testify at Gary's trial. A ninth victim, G.M., also survived. She was raped and beaten on September 11, 1977, and testified at Gary’s trial, identifying Gary as her assailant. Id.
The Superior Court for Butts County denied Gary's petition for a writ of habeas corpus, the Georgia Supreme Court denied a certificate of probable cause to appeal, and the United States Supreme Court denied certiorari review. See Gary, 558 F.3d at 1247-48.
The victim was Janet Cofer. See supra note 8.
See Gary v. Hall, -U.S.-, 130 S.Ct 742, 175 L.Ed.2d 521 (2009). This court received the Supreme Court’s mandate on December 8, 2009, and the District Court received this court's mandate on December 11, 2009.
Dr. David had appeared before the District Court at a hearing on February 14, 2007; Morrison appeared at a hearing held on November 21, 2000. The District Court had previously approved the expenditure of $7,000 for Dr. David’s work and $2,000 for Morrison’s.
Based on a letter written by Gary's counsel on April 16, 2010, the experts appeared without being paid; counsel personally guaranteed payment of their fees. .We review the decision of a District Court to deny funds for court-appointed experts for abuse of discretion. See United States v. Brown, 441 F.3d 1330, 1363 (11th Cir.2006) (reviewing a denial of funds under a predecessor statute). .The dissent predicts that “[t]o deny expert funding on the ground that the testimony has already been presented during the course of collateral review is to render § 3599(f) nearly meaningless,” post at 3, and that this decision "requires [the] denial of the overwhelming majority of (if not all) requests for expert assistance at a clemency hearing because none will be 'reasonably necessary,' ” post at 4. We are not persuaded. We are satisfied that the able district judges of this circuit will exercise their discretion based on what the prisoner says in his motion for expert assistance and the comprehensive record before the court. As we have noted, abuse of discretion review is exceedingly deferential. See Childers v. Floyd, 642 F.3d 953 (11th Cir.2011) (en banc) (noting that under an abuse of discretion review "we may only reverse the district court's decision if it fell outside of the ‘broad range of permissible conclusions.’ ” (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400-01, 110 S.Ct. 2447, 2458, 110 L.Ed.2d 359 (1990))). Our judges will not read our decision as a bright line rule; rather, they will read our decision for what it is — a determination that, given the circumstances of this particular case, the denial of funds was not an abuse of discretion.
Other circuits have concluded that where an indigent defendant seeks funding to provide testimony that is merely cumulative of evidence already in the record and when the indigent prisoner does not persuade the court that there are any particular circumstances of the case warranting in-person testimony, a District Court does not abuse its discretion in refusing to provide funds. See Fautenberry v. M., 572 F.3d 267, 269-71 (6th Cir.2009) (denying funds for a clemency hearing); Smith v. Dretke, 422 F.3d 269, 287-89 (5th Cir.2005) (refusing funds for a 28 U.S.C. § 2254 proceeding).
For an example of the CJA 30 form, see U.S. Courts, CJA-0030, Death Penalty Proceedings: Appointment of and Authority to Pay Court-Appointed Counsel (last revised Feb. 2012), available at http://www.uscourts. gov/uscourts/formsandfees/forms/cja/cja30. pdf.
Gary claimed that he was preparing a second application for clemency and that the application would be covered by § 3599. The District Court approved compensation for such preparation.
Other circuits agree that CJA attorney-compensation rulings are not appealable under 28 U.S.C. § 1291. See In re Carlyle, 644 F.3d 694 (8th Cir.2011); United States v. French, 556 F.3d 1091, 1093 (10th Cir.2009) (observing "[e]very circuit court of appeals to consider this jurisdictional question has held that CJA fee compensation determinations made by the district court are not appealable”); United States v. Bloomer, 150 F.3d 146, 148 (2d Cir.1998) (holding that orders concerning fee determinations for services already rendered under the CJA are not appealable); United States v. Stone, 53 F.3d 141, 143 (6th Cir. 1995); Shearin v. United States, 992 F.2d 1195, 1196 (Fed.Cir.1993); United States v. Davis, 953 F.2d 1482, 1497 n. 21 (10th Cir.1992); Landano v. Rafferty, 859 F.2d 301, 302 (3d Cir.1988); United States v. Walton (In re Baker), 693 F.2d 925, 926 (9th Cir.1982); United States v. Smith, 633 F.2d 739, 742 (7th Cir.1980). .Of course, there are some minor differences. For example, in a death-penalty appointment there is no statutory compensation maximum, interim payments are recommended, and different voucher forms are used. See 7 Guide to Judiciary Policy: Defender Services, pt. A, § 630 (last revised 2011), available at http://www.uscourts.gov/ FederalCourts/AppointmentOfCounsel/ Viewer.aspx?doc=/uscourts/FederalCourts/ AppointmentOfCounsel/vol7/VoL07.pdf.
The dissent claims that the court "reinterprets circuit precedent to the point of nonrecognition,” stating that it is important to decide "what the district court did — and did not — decide in the January 21, 2011 order at issue in Appeal No. 11-10705.” Post at 1281-82. We agree that it is important to be crystal clear in what was and was not decided, as well to understand the procedural posture of the dispute. As we describe in the introduction to this part, we must first understand the history behind the January 21, 2011 order. On December 1, 2010, Gary's attorneys submitted a CJA 30 voucher for their compensation. On December 10, 2010, the District Court denied part of their requested compensation. On December 23, 2010, Gary's attorneys filed a motion for reconsideration of the denial of compensation. Then, on January 21, 2011, the District Court denied part of the compensation Gary’s attorneys requested. Thus, the issue before this court is whether the District Court erred in denying part of Gary's attorneys’ compensation requested in the CJA 30 voucher. The issue is not whether the District Court erred in denying a motion by Gary to expand the scope of his appointed attorneys’ representation to include the prosecution of his DNA motion and a new trial, or, alternatively, to appoint counsel to represent him in those proceedings. In the plainest of terms, this is a case about Gary’s attorneys seeking compensation, not Gary seeking representation. The dissent implies that we should disregard the procedural posture of the case. Even though the District Court’s decision was an otherwise non reviewable CJA-voucher compensation decision, such a decision can morph into a reviewable denial of Gary’s right to representation, the dissent implicitly argues, because of the reason given to deny Gary’s attorneys’ compensation. The dissent highlights two controlling cases — Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) and In re Lindsey, 875 F.2d 1502 (11th Cir.1989) (per curiam)— where the orders are "practically indistinguishable” from the CJA denial at issue here. Post at 10. Such reliance is misplaced. Indeed, to realize why these cases actually support our understanding, we must ask this question: what was the procedural posture in those two cases? In Harbison, the motion at issue was filed in a live controversy and was entitled, "Request for Leave to Expand Appointment Order.” See Harbison v. Bell, 1:97-CV-52, 2007 WL 128954, at *1 (E.D.Tenn. Jan. 16, 2007). Likewise, in In re Lindsey, the motion was styled as a "MOTION FOR STAY OF EXECUTION AND FOR APPOINTMENT OF COUNSEL.” See In re Lindsey, 875 F.2d at 1503. Both cases involved a request by the indigent defendant for representation, not their attorneys for compensation. Both cases were reviewable because the prisoner’s rights were placed squarely at issue by the prisoner himself. Rodriguez decided that CJA compensation decisions are not appealable. See United States v. Rodriguez, 833 F.2d 1536, 1537-38 (11th Cir.1987) (per curiam). The decision at issue here is a compensation decision, plain and simple. A prisoner’s claim pertaining to the scope of his or her statutory entitlement to representation can easily be presented to the District Court in a motion for appointment of counsel or to expand the scope of representation, just as the petitioners in Harbison and In re Lindsey did. That procedural posture, though, is simply not what we have in Appeal No. 11-10705. The dissent thought it strange, post at 1266, that we had jurisdiction to review the denial of expert assistance, but not the partial denial of the CJA fee determination, even though the merits of both turned on the scope of § 3599. As we explain in note 26 infra, however, the motion at issue in Appeal No. 11-15396 was properly presented to the District Court in a motion filed by Gary asserting his rights to additional funds to expand the previous appointment of his expert. We have jurisdiction to review a final determination of Gary's rights, but do not have jurisdiction to review a CJA fee determination rooted in his attorney's right to compensation. There is no paradox about this disparate treatment.
The victims are identified in notes 7 and 8, supra.
The Superior Court ordered tests of the following items: a slide from a vaginal washing of Jean Dimenstein, a swab of Martha Thurmond's abdomen, a slide from a vaginal washing of Martha Thurmond, and a slide from vaginal contents of Kathleen Woodruff.
On August 25, 2011, the Superior Court ordered DNA testing of the following items found at the scene of G.M.’s rape and beating: a white sleeping gown, underclothing, and a white slip. G.M. survived the attack and testified at Gary’s trial, identifying him as her assailant. See supra note 8.
In its order denying Gary’s request for additional funding, the District Court indicated that, on June 4, 2010, it approved funding for Dr. Hampikian with the expectation that Gary was preparing to file a second application for clemency and, to assist counsel in such preparation, would seek funds for expert services under § 3599(f). A second application for clemency was not forthcoming, however, so the District Court concluded that Gary wanted the additional funding to finance his motion for a new trial. .After appointing counsel pursuant to § 3599(a)(2), the District Court retains jurisdiction to monitor the appointment administratively, until such time as the prisoner is no longer entitled to representation in a posthabeas case proceeding designated in § 3599(e), see supra note 2. Compensation issues that arise ancillary to the counsel's § 3599(a)(2) appointment, including the approval of CJA 30 vouchers for attorney's fees and the approval funding of "reasonably necessary'' expert services provided by § 3599(f), are examples of issues the District Court retains power to consider. The case remains live for that limited purpose. This appeal is of the denial of a motion filed by Gary, asserting his right under § 3599(f) for the District Court to provide funds for services Gary believes are “reasonably necessary” to assist his lawyers in prosecuting his motion for DNA testing in the Superior Court of Muscogee County. Gary properly asserted his right in a motion before the District Court. Cf. supra note 21. Gary also implicitly argued to the District Court that, in addition to the provision of funds to pay for the services of an expert under § 3599(f), the District Court should also expand his lawyers' § 3599(a)(2) appointment in the federal habeas case to include the state proceedings. The District Court disagreed on both fronts. Thus, in appealing the District Court's denial of § 3599(f) funds to hire Dr. Hampikian, Gary also effectively appealed the District Court's refusal to expand the scope of the § 3599(a)(2) appointment that would have allowed his lawyers to represent him before the Superior Court. In sum, we conclude that the District Court had retained jurisdiction to determine the scope of duties encompassed under the § 3599(a)(2) appointment and the availability of expert funds under § 3599(f), and whether the DNA motion fell within that ambit of representation. We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s determination on Gary's motion, which is a final decision. See Harbison v. Bell, 556 U.S. 180, 183, 129 S.Ct. 1481, 1485, 173 L.Ed.2d 347 (2009) (holding that a district court's denial of representation for an indigent prisoner contending that he has a statutory right to representation is a final appealable order under § 1291).
Two limitations that are not relevant here are: (1) if his conviction or death sentence is set aside, the prisoner is not entitled to the appointment of counsel under § 3599 for retrial in state court, despite the fact that the retrial would occur subsequent to the conclusion of the prisoner’s federal habeas case, Harbison v. Bell, 556 U.S. at 189, 129 S.Ct. at 1488 ("We do not read [§ 3599](e) to apply to state-court proceedings that follow the issuance of a federal writ of habeas corpus.”); and (2) if the State provides counsel for any proceeding otherwise covered by § 3599, federal funding is not available, id. ("[S]ubsection (a)(2) provides for counsel only when a state petitioner is unable to obtain adequate representation.”).
An execution could not go forward until the federal courts have considered and disposed of the prisoner's petition for a writ of habeas corpus. See Lonchar v. Thomas, 517 U.S. 314, 320, 116 S.Ct. 1293, 1297, 134 L.Ed.2d 440 (1996) ("If the district court cannot dismiss the [habeas] petition on the merits before the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot.”). A clemency proceeding in Georgia, at a minimum, cannot be held until after the prisoner has been denied habeas relief.
The dissent claims that a motion for a new trial is like a clemency hearing in that each presents “a final chance to rectify any fundamental miscarriage of justice.” Post at 1287. The dissent continues, noting that extraordinary motions for a new trial can be filed "at any time after the expiration of the thirty-day statutory period,” id. at 1288 (emphasis omitted), and are "typically” filed after the prisoner has been denied federal habeas relief, id. at 1287. The dissent concludes that, as a result, the two are alike in that "[t]he most appropriate time for an individual to file one of these motions would undoubtedly be after all the evidence has been investigated, the facts developed, and the arguments made in the traditional channels of review (i.e. state postconviction and federal habeas proceedings).” Id. (emphasis omitted). In taking this view, the dissent draws an indefensible parallel between an extraordinary motion for a new trial and a clemency proceeding. A clemency proceeding is, as the Supreme Court observed, a final chance to rectify any fundamental miscarriage of justice. See Herrera v. Collins, 506 U.S. 390, 415, 113 S.Ct. 853, 868, 122 L.Ed.2d 203 (1993); see also Utah Admin. Code r. 671-312-3(5) (allowing for a second clemency review, despite an earlier proceeding); David Schwartz, Arizona Executes Killer Who Fought Clemency Board, Chi. Trib., June 27, 2012, http://articles. chicagotribune.com/2012-06-27/news/sns-rtus-usa-execution-arizonabre85qlcm20120627_l_estafana-holmes-clemency-board-reprieve (noting that the Arizona clemency board rejected the inmate’s application on the Friday preceding his execution); Andrew Welsh-Huggins, Gov. Kasich Grants Two-Week Reprieve to Death-row Inmate, News-Messenger (Fremont, Ohio), June 6, 2012, http ://www.thenews-messenger. com/ article/20120606/NEWS01/206060312/GovKasich-grants-two-week-reprieve-death-rowinmate (stating that the Ohio Parole Board voted against mercy in the month preceding the execution date); Mississippi Gov. Phil Bryant Won’t Stop Execution for 1990 Slayings, Gulflive.com, June 05, 2012, http://blog. gulflive.com/mississippi-press-news/2012/06/ mississippi_gov_phiLbryant_wo.html (reporting that the Governor of Mississippi refused mercy on the afternoon of the execution date). An extraordinary motion for a new trial is entirely different. Georgia law, for example, is clear in that an extraordinary motion for a new trial is subject to stringent limitations and cannot be used as a "final” chance for relief. The statutes which control extraordinary motions for new trial based on newly discovered evidence require a defendant to act without delay in bringing such a motion. OCGA §§ 5-5-23 and 5-5-41 (Code Ann. §§ 70-204 and 70-303). The obvious reason for this requirement is that litigation must come to an end. Drane v. State, 728 S.E.2d 679, 2012 WL 2369437, at *5 (Ga.2012) (quoting Llewellyn v. State, 252 Ga. 426, 314 S.E.2d 227, 229 (1984)); see also Davis v. State, 283 Ga. 438, 660 S.E.2d 354, 359 (2008) ("Thus, it appears that Davis has not been diligent in presenting tírese affidavits to the trial court, which is another of the requirements in an extraordinary motion for new trial."); Llewellyn, 314 S.E.2d at 229 (Ga.1984) (requiring both due diligence to discover the information and prompt filing of the motion once information is in hand). Other States provide different postconviction procedures for seeking a new trial based on newly-discovered evidence; such procedures must be invoked promptly, after the new evidence has been discovered. See, e.g., Ala. R.Crim. P. 32.1(e)(1) (providing that an individual can bring a newly-discovered evidence claim if "[t]he facts relied upon were not known by the petitioner or the petitioner's counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence"); Ky. R.Crim. P. 10.06(a) ("The motion for a new trial shall be served not later than five (5) days after return of the verdict. A motion for a new trial based upon the ground of newly discovered evidence shall be made within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits.”); Fields v. State, 151 Idaho 18, 253 P.3d 692, 699 (2011) (describing postconviction procedure to bring a newly-discovered evidence claim and noting that "[the defendant] was required to bring those claims within a reasonable time after they were known or should have been known. Claims not raised within that reasonable time are deemed waived” (citation omitted)); State v. Unsworth, 2010 WL 415415, at *2 (Ohio Ct.App.2010) ("Although [Ohio R.Crim. P. 33(B) ] itself does not provide a specific time limit for the filing of a motion for leave to file a delayed motion for new trial, [a] trial court may require a defendant to file his motion for leave to file within a reasonable time after he discovers the evidence.” (alteration in original) (internal quotation marks omitted)). Thus, unlike a clemency proceeding, which commonly occurs as a final chance to prevent a miscarriage of justice, the time for filing a motion for a new trial based on newly discovered evidence depends entirely on when the prisoner discovered the evidence. It is simply incorrect to assert that an extraordinary motion for a new trial is "typically” filed after a federal habeas petition or that an extraordinary motion for a new trial would be held in reserve as a measure of last resort. On the other hand, a prisoner who obtains evidence that would support a clemency application can sit on that evidence until the last possible moment. In sum, if a prisoner discovers new evidence that might prompt the court in which he was convicted and sentenced to grant a new trial (or a new sentencing hearing), the prisoner must act with dispatch. This means that if, after filing a § 2254 petition, a prisoner discovers evidence that would warrant the granting of a new trial, the prisoner runs the risk of having his motion for new trial declared untimely if he does not file his motion immediately.
In cases like Gary’s, where DNA testing was not available at the time of conviction, such a showing is not likely to be difficult. There are additional restrictions on when a motion may be filed. See Daniel's Georgia Criminal Trial Practice § 28-12 (2011-2012 ed.) (noting that "[t]he usual ground stated for the filing of an extraordinary motion for a new trial is the discovery of newly found evidence” and listing six requirements that a movant must show, including that " 'it was not owing to the want of due diligence that he did not acquire it sooner’ ”) (quoting Timber-lake v. State, 246 Ga. 488, 271 S.E.2d 792, 795 (1980)); see also O.C.G.A. § 5-5-23 ("A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.”).
The dissent claims that the Supreme Court has dismissed federalism as a reason for concern. See post at 26. Surely, it is beyond serious dispute that the potential interference arising from close federal supervision over state court proceedings pertaining to an extraordinary motion for a new trial — a proceeding that may last for a significant period of time — presents far more compelling reasons to be concerned than the risk of federal interference with a single clemency board review that may or may not even involve a single hearing. This is yet another illustration of the substantial differences between a clemency proceeding, on the one hand, and an extraordinary motion for a new trial containing issues that have not been presented to the district court on the other.
During federal habeas proceedings, we reviewed the potential exculpatory impact of the bite-mark exemplar but did not examine the value (if any) of the other testing requested. For Gary’s claims under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which concerned the request for serological testing, we concluded that he was not entitled to relief because the denial of expert services was essentially a determination of state law unreviewable on federal habeas. Gary v. Hall, 558 F.3d 1229, 1251 n. 37 (11th Cir.2009) ("[Wjhether Gary was entitled to funds for the employment of a serologist was a matter of state law.”); id. at 1254 ("Gary’s denial-of-funds claim did not present a federal constitutional question, and the district court should not have entertained it.”). For Gary’s claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we ruled that the bite-mark exemplar was inconclusive and, therefore, not material to the outcome of the trial. Gary, 558 F.3d at 1257.
At the time this expert testimony was developed, Harbison had not been decided, and controlling Eleventh Circuit precedent did not extend appointed counsel’s representation to clemency proceedings. See King v. Moore, 312 F.3d 1365, 1365-66 (11th Cir.2002) (per curiam).
The Fifth Circuit has not applied this standard in a published opinion after Riley, nor have we acknowledged it in any case other than Brown.
It cannot matter for our jurisdictional analysis that appointed counsel originally presented the district court with one CJA voucher requesting payment for work completed on two distinct proceedings (state clemency and the state motion for new trial). To hold that this would be appealable if the requests were made on two different sheets of paper, or to impose a "magic words” requirement on the label of the filing, is impractical and requires the sort of hypertechnical construction that the Supreme Court has specifically instructed us not to employ. See Eisen, 417 U.S. at 171, 94 S.Ct. at 2149. The district court made abundantly clear that the January 21 order denying reconsideration was a final resolution of the issue of counsel's representation for work on the state motion. In fact, the district court here had two opportunities to clarify the scope of its denial, and it explained in both orders that the scope of § 3599 did not extend to these proceedings. See Gary v. Terry, No. 97-181 (S.D.Ga. Dec. 10, 2010) (order denying payment for compensation); Gary, 2011 WL 205772 (order denying reconsideration).
We followed a path similar to the Sixth Circuit and arrived at the same conclusion prior to the Supreme Court's Harbison ruling. See King v. Moore, 312 F.3d 1365 (11th Cir. 2002) (per curiam) (Edmondson, Black, and Marcus, JJ.). In King, the panel was faced with a district court’s order that construed § 3599's predecessor as not extending federal counsel’s representation to state clemency proceedings. Id. at 1366. The panel affirmed without questioning the propriety of the exercise of jurisdiction over the order interpreting the reach of the federal statute.
This was also the relevant holding in the cases cited by the majority in footnote 19, none of which involved a district court’s determination that the services for which compensation was requested fell outside the scope of representation authorized by the federal statute. See In re Carlyle, 644 F.3d 694, 698 (8th Cir.2011) (finding no jurisdiction “to review a district court's reduction of a CJA voucher”); United States v. Bloomer, 150 F.3d 146, 148 (2d Cir.1998) (per curiam) (“[Orders concerning fee determinations for services already rendered ... are not appealable ...." (emphasis added)); United States v. Stone, 53 F.3d 141, 141 (6th Cir.1995) (holding that the court lacked jurisdiction over the district court’s order approving compensation in an amount less than requested); Shearin v. United States, 992 F.2d 1195, 1197 (Fed.Cir. 1993) ("Fee determination under the [CJA] is an administrative rather than judicial determination ....”); United States v. Davis, 953 F.2d 1482, 1497 n. 21 (10th Cir.1992) (noting that the district court’s fee determinations are administrative and not appealable but finding the claim at issue was "fundamentally different from claims concerning the amount of payment,” thereby permitting review of the district court's alleged failure to review CJA vouchers); Landano v. Rafferty, 859 F.2d 301, 302 (3d Cir.1988) (per curiam) ("[A] district court decision determining the amount of [counsel’s] compensation is essentially administrative in nature.’’); In re Baker, 693 F.2d 925, 927 (9th Cir.1982) (per curiam) ("[T]he district judge's certification of attorneys’ fees is an administrative act ...."); United States v. Smith, 633 F.2d 739, 740 (7th Cir.1980) ("[Although some compensation must be awarded appointed counsel under the [CJA], the district judge is accorded exclusive discretion in fixing the amount.” (citations and quotation marks omitted)).
Clark found jurisdiction proper as a final order under § 1291 and under the collateral order exception to § 1291’s finality requirement. 278 F.3d at 460-61 ("We conclude therefore that under either theory this court has appellate jurisdiction as to the district court’s order."). I agree that we could alternatively exercise jurisdiction here under the collateral order exception, though I will not belabor that point because it is obvious to me that the district court issued a final order under § 1291.
Nor does § 3599 provide a prisoner with a government-issued blank check, as the statute sets the maximum compensation for the attorney's hourly representation and for the expert services requested. 18 U.S.C. § 3599(g). Any requested increase in payment is subject to court approval. Id.
Concurring in the judgment, Chief Justice Roberts provided other examples of proceedings that would not be subsequent stages, including "a challenge to prison conditions or a suit for divorce in state court.” Harbison, 556 U.S. at 195-96, 129 S.Ct. at 1492. I understand this statement to mean that litigation unrelated to counsel's § 2254 representation constitutes a "new proceedingf]” not entitled to funding under § 3599, and I do not believe it speaks to the situation at hand where the state motion contemplates issues intertwined with counsel's § 2254 representation. See also Martel v. Clair, 565 U.S.-, 132 S.Ct. 1276, 1283, 182 L.Ed.2d 135 (2012) (explaining that § 3599 extends a right to counsel "for all postconviction proceedings and related activities”).
The Court approved of representation in some state-specific litigation germane to counsel's federal habeas representation. Harbison, 556 U.S. at 189-90 & n. 7, 129 S.Ct. at 1488-89 (noting that a case-by-case determination is appropriate where counsel seeks to return to state court to litigate unexhausted claims in the federal petition); id. at 187 n. 6, 129 S.Ct. at 1487 (explaining that it would be absurd to prohibit counsel from representing a state inmate in application for a state court stay of execution before seeking such relief in federal court).