David Eugene Matthews v. RANDY WHITE , Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0276p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DAVID EUGENE M ATTHEWS,
Petitioner-Appellant,
v.
RANDY WHITE , Warden,
Respondent-Appellee.
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No. 13-5901
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:99-cv-00091—John G. Heyburn II, District Judge.
Decided and Filed: November 10, 2015
Before: SILER, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: David M. Barron, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY
Frankfort, Kentucky, Alan M. Freedman, MIDWEST CENTER FOR JUSTICE, LTD.,
Evanston, Illinois, for Appellant. Matthew R. Krygiel, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In 1982, David Matthews was convicted of
murder and sentenced to death. His conviction and sentence have been affirmed on direct appeal
and in post-conviction proceedings. See Matthews v. Commonwealth, 709 S.W.2d 414 (Ky.
1985); Matthews v. Commonwealth, No. 96-SC-805-MR (Ky. Nov. 20, 1997); Matthews v.
Simpson, 603 F. Supp. 2d 960 (W.D. Ky. 2009) (denying habeas petition), rev’d in part sub nom.
>

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Matthews v. Parker, 651 F.3d 489 (6th Cir. 2011), rev’d sub nom. Parker v. Matthews, 132 S. Ct.
2148 (2012). Having exhausted his judicial remedies, Matthews intends to petition the Governor
of Kentucky for clemency under § 77 of the Kentucky Constitution. Matthews will base his
request, at least in part, on what he thinks are mitigating factors related to his neuropsychological
health. Before the court is the question whether Matthews is entitled to funding under 18 U.S.C.
§ 3599 so that he may secure a neuropsychological evaluation to support this argument. The
district court denied his request, but appeared to rely on an incorrect rule that § 3599 funding is
available only for use in federal proceedings and did not otherwise explain its reasons for
denying the request. We therefore VACATE the district court’s judgment and REMAND for
further proceedings consistent with this Opinion.
I. BACKGROUND
Matthews received a neuropsychological evaluation from Dr. Richard Edelson in
preparation for his trial in 1982, which resulted in a very general set of conclusions and a report
that is just over two pages long. See R. 280-2 (Edelson Report) (Page ID #1181–83). Matthews
contends that this evaluation is both dated and incomplete, making it inadequate to support his
clemency petition.
Dr. John Fabian, a forensic neuropsychologist, stated that in the decades since the
1982 evaluation was conducted, the Bender Gestalt Test—one of the tests that had been
administered to Matthews—has become “very outdated, rarely used today, and [is] not helpful to
gain a full and reliable understanding of the extent of Matthews’ neuropsychological deficits and
brain damage.” R. 280-1 (Fabian Decl. ¶¶ 1, 12) (Page ID #1162, 1164). Dr. Fabian also
proffers that the 1982 evaluation was deficient in that: (1) it failed to “include any executive
functioning testing,” even though “[w]hen considering the brain mechanisms related to violence,
executive functioning is a critical area to examine,” id. ¶¶ 9–10 (Page ID #1164); (2) it did not
“thoroughly assess Matthews’ neurocognitive functioning,” as “[t]he evaluation was extremely
limited in scope and results, culminating in a report that was only three pages and that spoke
mainly in generalities,” id. ¶ 11 (Page ID #1164); and (3) it did not “consistently integrate [its]
data of neuropsychological deficit with Matthews’ chronic substance abuse, electrocution, and
other trauma events that insult the brain,” id. ¶ 12 (Page ID #1164–65). If anything, Dr. Fabian

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concluded, the information contained in the report—along with evidence of Matthews’s
substance abuse, alcohol consumption, inhaling glue, malnutrition as a child, and an instance of
having lost consciousness as a child due to an electric shock—led Dr. Fabian to conclude that it
is likely “that Matthews suffers from some neuropsychological deficits and brain damage” and
that “a full neuropsychological battery would be appropriate and would likely provide a much
fuller picture of the extent and scope of Matthews’ neuropsychological deficits.” Id. ¶¶ 5, 7–8,
13 (Page ID #1162–63, 1165).1
This additional information could support Matthews’s petition for clemency from the
Governor of Kentucky, so he asked the district court to authorize the payment of expenses
associated with this evaluation pursuant to 18 U.S.C. § 3599. The district court denied
Matthews’s request. See R. 286 (Memorandum and Order) (Page ID #1252–59). Much of the
district court’s opinion summarized the facts and the parties’ competing arguments. See id. The
analysis section in Parts III.A and III.B expressed the State’s arguments and Matthews’s
responses, but never provided a resolution. See id. at 5–7 (Page ID #1256–58) (stating that
Matthews’s “case is more aligned with Fautenberry v. Mitchell, 572 F.3d 267 (6th Cir. 2009)”
than with a district court decision “in which funds were awarded for a neuropsychological
evaluation and brain scan,” but then summarizing Matthews’s reasons for distinguishing
Fautenberry); id. at 7 (Page ID #1258) (summarizing a recent district court decision that denied a
§ 3599 request where “the request for a neuropsychologist seemed ‘to be based upon the mere
hope or suspicion that an expert may find something of use, and is not based on any showing of
actual reasonable necessity’”); id. at 7–8 (Page ID #1258–59) (quoting Foley v. White, No. 6:00-
552-DCR, 2013 WL 990828, at *8 (E.D. Ky. Mar. 12, 2013)) (noting that Matthews “pointed to
a history of events and behavior that can cause brain damage; he has provided an expert opinion
that neuropsychological testing is warranted; and has explained why previous testing was
1In 1982, Matthews also received a psychiatric evaluation from Dr. Lee Chutkow, who diagnosed him with
temporary alcohol abuse and adjustment disorder. This evaluation was criticized by a subsequent expert, Dr. Robert
Smith, who met with Matthews once in 1994 and created a preliminary report based upon that interview and two
psychological tests. See R. 284-3 (Smith 1994 Report at 1) (Page ID #1218). The 1994 report noted that “there are
a number of significant areas that warrant further assessment,” id. at 8 (Page ID #1225), and Dr. Smith was later
appointed an expert for Matthews’s federal habeas proceedings, at which point he submitted a report diagnosing
Matthews with narcissistic personality disorder and a more chronic form of alcohol dependence, R. 284-4 (Smith
2006 Report) (Page ID #1227–36). In Matthews’s view, Dr. Smith’s evaluation is inadequate for his clemency
petition because it did not address neuropsychological deficits or the defects affecting Dr. Edelson’s
1982 evaluation. See Appellant Reply Br. at 6–7.

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inadequate and is now outdated,” and then stating “[o]n the other hand, Dr. Fabian has already
presented an affidavit containing opinions which the Governor could use”). The district court
closed with Part III.C.:
Petitioner asks for funds to make an argument before the state Governor.
The Court finds it a questionable exercise of its discretion to allow the
expenditure of federal funds to pursue a state remedy. While federally appointed
counsel may well be entitled to make such a request, the granting of such funds is
clearly not a right. Moreover, while this Court “is fully cognizant of the interests
at stake in this proceeding . . . the Court also cannot condone the continual,
repeated outflow of taxpayer funds” for matters which Petitioner “has already
been given a full and fair opportunity to litigate.” Woods v. Thaler, No. A-09-
CA-789-SS, 2009 WL 3756847, at *7 (W.D. Tex. Nov. 6, 2009). The Court will
exercise its discretion to deny the funds.
Id. at 8 (Page ID #1259).
II. ANALYSIS
A. Requirements for a Motion Under 18 U.S.C. § 3599
18 U.S.C. § 3599 allows for the appointment of counsel in, among other things,
“proceedings for executive or other clemency as may be available to the defendant.” Id.
§ 3599(e). The statute also provides that “[u]pon 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.” Id. § 3599(f). “The Supreme Court recently made clear ‘that
[18 U.S.C.] § 3599 authorizes federally appointed counsel to represent their clients in state
clemency proceedings and entitles them to compensation for that representation.’” Fautenberry
v. Mitchell, 572 F.3d 267, 272 (6th Cir. 2009) (Moore, J., concurring) (quoting Harbison v. Bell,
556 U.S. 180, 194 (2009)). Section 3599(f) therefore authorizes the payment of fees related to
an expert witness whose “‘services are reasonably necessary for the representation of the
defendant’” in connection with state clemency proceedings. See id. (quoting 18 U.S.C.
§ 3599(f)); id. at 268–71 (panel majority also applying § 3599 analysis to request for funds in
support of a state clemency petition).

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In general, this means “that an expert should be appointed ‘when a substantial question
exists over an issue requiring expert testimony for its resolution and the defendant’s position
cannot be fully developed without professional assistance.’” Wright v. Angelone, 151 F.3d 151,
163 (4th Cir. 1998) (quoting Williams v. Martin, 618 F.2d 1021, 1026 (4th Cir. 1980)).2 The
issue is more often litigated in the context of federal habeas proceedings, where it is clearer what
questions could affect the outcome of proceedings and thereby be considered “substantial,” and
what testimony might be useful to support the petitioner’s argument. Clemency proceedings
present different issues:
[C]onsideration must be given to the nature and purpose of clemency proceedings.
The clemency process takes place only after all judicial proceedings have been
completed. In capital cases, such judicial proceedings include, at a minimum,
trial, direct appeal, state post-conviction review, and federal habeas review, in all
of which proceedings indigent prisoners are provided with legal representation
and investigative and expert assistance at taxpayer expense. Clemency
“proceedings are a matter of grace entirely distinct from judicial proceedings.”
Harbison, 556 U.S. at 192. “Clemency is deeply rooted in our Anglo-American
tradition of law, and is the historic remedy for preventing miscarriages of justice
where judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390,
411–12 (1993) (footnote omitted). Thus, when a petitioner requests funds for
investigative services for the purpose of clemency proceedings, the petitioner
must show that the requested services are reasonably necessary to provide the
Governor and Board of Pardons and Paroles the information they need in order to
determine whether to exercise their discretion to extend grace to the petitioner in
order to prevent a miscarriage of justice.
Brown v. Stephens, 762 F.3d 454, 460 (5th Cir. 2014).
2The need to show the existence of “substantial question” is not the same as the requirement apparently
adopted by the Fifth and Eleventh Circuits that a § 3599 movant “demonstrate a substantial need” for the expert
services. Neither Circuit has explained why this heightened standard is appropriate. See Brown v. Stephens,
762 F.3d 454, 459 (5th Cir. 2014), cert. denied, 135 S. Ct. 1733 (2015); Gary v. Warden, Ga. Diagnostic Prison,
686 F.3d 1261, 1268 (11th Cir. 2012), cert. denied, 133 S. Ct. 1734 (2013); United States v. Brown, 441 F.3d 1330,
1364 (11th Cir. 2006), cert. denied, 549 U.S. 1182 (2007); Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004),
cert. denied, 543 U.S. 1056 (2005); Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000), cert. denied, 531 U.S. 831
(2000); Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997), cert. denied, 522 U.S. 963 (1997). The statute requires
a showing that expert assistance is “reasonably necessary,” 18 U.S.C. § 3599(f), so a rule that requires a showing of
“substantial” necessity inappropriately “implies that the movant must carry a heavier burden than that contemplated
by the statute.” Gary, 686 F.3d at 1281 (Wilson, J., dissenting). Indeed, testimony could be “reasonably” necessary
without being “substantially” necessary. Compare Reasonable, BLACK’ S LAW D ICTIONARY (10th ed. 2014) (“Fair,
proper, or moderate under the circumstances; sensible”), with Substantial, BLACK’ S LAW D ICTIONARY (10th ed.
2014) (“Important, essential, and material; of real worth and importance” or “[c]onsiderable in amount or value;
large in volume or number”).

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We addressed the issue briefly in Fautenberry, in which we affirmed a district court’s
denial of a § 3599 request for a successive neuropsychological evaluation in a case in which the
petitioner had not argued to the district court that a prior “evaluation was incomplete, outdated,
or unreliable,” nor “that a new evaluation might show that Fautenberry now suffers brain
impairment more severe than that diagnosed 13 years ago,” and had “advanced no evidence from
which the district court could find that [a new] evaluation would not be duplicative of
information already available to the state executives entertaining his clemency petition.”
572 F.3d at 270–71. The majority of the panel thus held that “the district court was left without
any explanation as to why a new assessment was ‘reasonably necessary.’” Id. at 271. But see id.
at 271–72 (Moore, J., concurring) (stating that the petitioner’s “current mental state is essential
to a determination of whether he is entitled to clemency”—especially given “a history of head
trauma and . . . significant brain impairment”—and that “[a] stale evaluation performed in
1996 does not serve this purpose” even absent “evidence of specific changes”).
B. The District Court Abused Its Discretion
We review the district court’s denial of Matthews’s § 3599 motion for abuse of
discretion, which will be found if the district court “applie[d] the incorrect legal standard,
misapplie[d] the correct legal standard, or relie[d] upon clearly erroneous findings of fact.”
Fautenberry, 572 F.3d at 268 (quoting Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir. 2007)
(en banc)). We conclude that the district court abused its discretion in two ways.
1. The District Court Applied an Erroneous Legal Standard
The district court stated that it was “a questionable exercise of its discretion to allow the
expenditure of federal funds to pursue a state remedy.” R. 286 (Memorandum and Order at 8)
(Page ID #1259). But that is not the law. See Harbison, 556 U.S. at 194 (Section 3599 governs
appointment in state clemency proceedings); Fautenberry, 572 F.3d at 268–71 (applying
§ 3599’s “reasonably necessary” standard to a request for appointment in connection with state
clemency proceedings that followed a federal habeas proceeding in which counsel had been
appointed). Concerns regarding the use of federal funds to pursue state clemency therefore have
no bearing on Matthews’s § 3599 motion.

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2. The District Court Did Not Explain Any Other Basis for Its Decision
The district court failed to explain what other legal standard it relied upon in denying
Matthews’s motion, if any. It recited the general standard that a § 3599 motion must show a
reasonable necessity for the request, and reviewed the parties’ competing arguments for applying
or distinguishing Fautenberry, R. 286 (Memorandum and Order at 6–8) (Page ID #1257–59), but
never resolved those arguments. For each time in Parts III.A–B that it seemed to accept the
State’s argument, it followed up by seeming to credit Matthews’s response. See id. Portions of
Parts III.A. and III.B. could be read to imply that Matthews failed under Fautenberry to show a
basis for his belief that he will find any additional information, and had Matthews provided no
support for this hypothesis, such a holding might have been justified. See Fautenberry, 572 F.3d
at 270 (petitioner failed to argue or otherwise show “that a new evaluation might show that
Fautenberry now suffers brain impairment more severe than that diagnosed 13 years ago,” that
the new evaluation “would lead to a more accurate diagnosis,” or “that his brain impairment has
worsened”); Brown, 762 F.3d at 460–61 (only “speculation” supported a finding that the
evidence sought would be anything but duplicative); Edwards v. Roper, 688 F.3d 449, 462–63
(8th Cir. 2012) (only support for the need for an expert was counsel’s “state[ment] that they had
reason to believe that [petitioner’s] mental condition had deteriorated in the five years since a
prior evaluation”), cert. denied, 134 S. Ct. 58 (2013). But it is not clear that the district court
found as much, because it acknowledged that Matthews presented an affidavit from an expert as
to why “neuropsychological testing is warranted,” R. 286 (Memorandum and Order at 7–8)
(Page ID #1258–59), and that affidavit describes what additional information is likely to be
obtained and how, R. 280-1 (Fabian Aff. ¶¶ 6–14) (Page ID #1163–65).3 It is therefore unclear
whether the district court concluded that Fautenberry controls this case.
3Relatedly, the district court’s statement at the close of Part III.B. that “[o]n the other hand, Dr. Fabian has
already presented an affidavit containing opinions which the Governor could use,” R. 286 (Memorandum and Order
at 8) (Page ID #1259), could support a finding that the relevant information is already in the record. See Lawson v.
Dixon, 3 F.3d 743, 753 (4th Cir. 1993) (psychiatrist’s affidavit in support of a § 3599 request “stated that Dr. Royal
already had formed his opinion on [the petitioner’s] alleged lack of competency and inability to waive his right to a
sentencing hearing”), cert. denied, 510 U.S. 1171 (1994). Again, it is not clear whether the district court ruled on
this basis, and both the district court and the State have arguably acknowledged ways in which Dr. Fabian’s affidavit
is not the same thing as a complete report. See R. 286 (Memorandum and Order at 7–8) (Page ID #1258–59) (noting
that Dr. Fabian’s affidavit “provided an expert opinion that neuropsychological testing [was] warranted and . . .
explained why previous testing was inadequate and is now outdated”); R. 284 (Respondent’s Opp. To Mot. at 5)

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The district court’s explanation of why it denied Matthews’s motion came in Part III.C.
of its Opinion, but that section is also unclear. After the statement regarding the use of federal
funds for state clemency proceedings, the district court stated that Matthews’s counsel “may well
be entitled to make such a request,” but that “the granting of such funds is clearly not a right.”
R. 286 (Memorandum and Order at 8) (Page ID #1259). To be sure, § 3599 funds are not a
“right” insofar as one must meet the reasonable-necessity standard to obtain them and § 3599(f)
is phrased in discretionary language (“the court may authorize”), but district courts must explain
what legal standards they apply and how those standards apply to the facts of a particular case.
The district court continued that “while this Court ‘is fully cognizant of the interests at
stake in this proceeding . . . the Court also cannot condone the continual, repeated outflow of
taxpayer funds’ for matters which Petitioner ‘has already been given a full and fair opportunity
to litigate,’” id. (quoting Woods, 2009 WL 3756847, at *7), and concluded “[t]he Court will
exercise its discretion to deny the funds,” id. The district court did not explain how Matthews’s
prior litigation of issues related to his mental health bears on whether it is reasonably necessary
to have a supplemental evaluation to support his clemency petition. Thus, the passage could be
read in two ways, neither of which supplies a basis to affirm the district court’s decision on the
existing record:
First, the passage could be a finding that expenditure of funds was unnecessary because
Matthews has already lost in court the argument that he intends to make to the Governor. But
clemency is different than litigation, even if similar issues are raised. The Governor has
“unfettered discretion” to consider a clemency application, Baze v. Thompson, 302 S.W.3d 57,
60 (Ky. 2010), and so may decide that clemency is warranted even if Matthews could not meet a
particular legal standard for mitigation in court. Notwithstanding the State’s argument that the
standard for clemency is “extremely high,” Appellee Br. at 9, it remains unclear why Matthews’s
prior litigation of mental-health issues alone means that a new evaluation cannot be “reasonably
necessary” for his clemency petition. See Sanborn v. Parker, No. 99-678-C, 2011 WL 6152849,
at *1 (W.D. Ky. Dec. 12, 2011) (because “a bid for clemency is not reliant upon or restricted to
matters argued before the courts, and is not restricted to cases where the guilt of the petitioner is
(Page ID #1210) (describing Matthews’s request as a “fishing expedition[] for physical deformities” that is not
useful to the Governor’s consideration of clemency “absent evidence of actual functional deficits”).

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in doubt,” evidence of a petitioner’s “neuropsychological state, including whether or not he has
some sort of brain damage or abnormality, is indeed relevant to his clemency petition, even
though [he] was twice judged competent to stand trial”) (internal citations omitted).
Second, the district court could have meant that prior proceedings demonstrate that there
is no new information left for Matthews to find, so the evaluation would be duplicative of
information that is already in the record to be submitted to the Governor. A § 3599 motion could
be denied if the movant failed entirely to explain what new information a new expert might
uncover. See, e.g., Brown, 762 F.3d at 460–61 (movant “offered little beyond speculation that
the proposed additional investigation would uncover some information different from that [a
prior expert] described in her report and affidavit,” which would be submitted to the clemency
authority). But the district court recognized that Matthews “pointed to a history of events and
behavior that can cause brain damage; he has provided an expert opinion that neuropsychological
testing is warranted; and has explained why previous testing was inadequate and is now
outdated.” R. 286 (Memorandum and Order at 7–8) (Page ID #1258–59). It is therefore not
clear that the district court believed that Matthews sought duplicative evidence.4
It is unclear whether the district court relied upon any legal standard other than its
concern about the use of federal funds in state clemency proceedings in denying Matthews’s
motion and, if it did, whether that other standard may appropriately be applied to deny
Matthews’s motion. We thus conclude that the district court abused its discretion.
III. CONCLUSION
For these reasons, the district court appeared to rely upon an erroneous legal standard and
otherwise failed to explain its application of any other legal standard to the facts of this case,
thereby abusing its discretion. We therefore VACATE the denial of Matthews’s motion and
REMAND for further proceedings consistent with this Opinion.
4The State argues that the information on which Dr. Fabian’s affidavit is based was almost all information
that was known to prior examiners. See Appellee Br. at 9–10. Even if so, Dr. Fabian’s evaluation would not
necessarily be duplicative if he is able, as he suggests, to add to flawed, outdated, or incomplete examinations. Also,
the State’s argument regarding the lack of evidence that Matthews was treated for any of the issues from which Dr.
Fabian hypothesized he might suffer, id. at 10, appears to be irrelevant to the question whether an examination by
Dr. Fabian is reasonably necessary to providing the Governor a full picture of Matthews’s neuropsychological state.

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