Dowthitt v. Johnson
In Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir. 2000), the habeas petitioner argued that he had been deprived of the effective assistance of counsel because his trial counsel had failed to present a mitigation defense based on his mental illness. 230 F.3d at 743.
In state court proceedings, Dowthitt presented his Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), claim based on evidence his counsel on habeas located, including a hospital form and Air Force records indicating Dowthitt suffered from mental illness. Dowthitt, 230 F.3d at 743-44.
However, on federal habeas, Dowthitt additionally produced affidavits from two mental health experts whose clinical impressions were that Dowthitt had paranoid and schizophrenic features-severe mental problems. Id. at 744.
The Court found that "Dowthitt did not allege `new facts' via the affidavits of the two experts because `all crucial factual allegations were before the state courts at the time they ruled on the merits' of Dowthitt's habeas petition." Dowthitt, 230 F.3d at 746.
Because Dowthitt had presented to the state habeas court his assertions that he suffered from paranoid schizophrenia, this Court determined the expert affidavits added little to those claims and did not run afoul of the exhaustion requirement. Id.
In Dowthitt, we specifically considered that although both the Director and the petitioner "argued this issue as one of `factual development' under 28 U.S.C.A. 2254(d) and (e), it is more accurately analyzed under the `exhaustion' rubric of 2254(b)." Id. at 745.
The Court explained that if new evidence on the particular claim is determined to be exhausted under 2254(b)(1)(A), such evidence is not precluded from review and can properly be considered by the federal court. See id. at 745-46.
The Court thus rejected the approach whereby a petitioner would have to meet the factual development requirements of 2254(e)(2) to be entitled to have his new evidence on the particular claim be reviewed in federal court. See id. at 745 & nn. 11-12.
The Fifth Circuit held that sometimes diligence requires obtaining pertinent affidavits.
The court wrote:
Dowthitt argues that he exercised due diligence because he requested evidentiary hearings in state habeas proceedings, and those requests were denied. Thus, he asserts that his failure to develop his habeas claims are excused under 28 U.S.C. 2254(e)(2). We do not agree. Mere requests for evidentiary hearings will not suffice; the petitioner must be diligent in pursuing the factual development of his claim. As the state habeas court found, Dowthitt did not present affidavits from family members and did not show that they "could not be obtained absent an order for discovery or a hearing." In response, Dowthitt now argues that his "proffers" of what would be presented at a hearing constituted due diligence. We do not find his argument persuasive. Given that the family members were willing to testify at a hearing, Dowthitt could have easily obtained their affidavits. A reasonable person in Dowthitt's place would have at least done as much. Dowthitt's arguments that lack of funding prevented the development of his claims are also without merit. Obtaining affidavits from family members is not cost prohibitive. Thus, Dowthitt has not rebutted the state habeas finding in this regard. Id.