CASE NO. ________ (CAPITAL CASE)
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________________________________
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, WARDEN, SOUTH DAKOTA STATE PENITENTIARY,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals for the Eighth Circuit
________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________________________________

Jason J. Tupman
Acting Federal Public Defender
Office of the Federal Public Defender
District of South Dakota and
District of North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
(605) 330-4489

Claudia Van Wyk*
Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
*Counsel of Record

Member of the Bar of the Supreme Court
Counsel for Petitioner, Charles Russell Rhines
Dated: November 1, 2019

 QUESTION PRESENTED
CAPITAL CASE
In 18 U.S.C. § 3599, Congress created a right for indigent death-sentenced
state prisoners to obtain legal and expert services, including services in support of
requests for clemency, and a framework for federal courts to apply in deciding
whether a prisoner is entitled to such assistance. In Ayestas v. Davis, 138 S. Ct.
1080, 1088 (2018), this Court rejected a novel “substantial need” test for expert
services that was “more demanding” than the one required by § 3599’s text.
Petitioner is an indigent death-sentenced prisoner in South Dakota. In
support of his request for gubernatorial clemency, he seeks to present psychiatric
and neuropsychological experts to attest to his significant cognitive and psychiatric
impairments. However, in the absence of a court order, state corrections officials
have for years refused to permit his experts to evaluate Petitioner in person.
Petitioner moved the federal court, pursuant to its authority under § 3599, to
issue an order granting Petitioner the right “to obtain” those expert services. The
district court ruled that it lacked jurisdiction to issue such an order. On appeal,
rather than ruling on the scope of a federal district court’s power to issue orders in
aid of its jurisdiction under § 3599, the Eighth Circuit adopted a novel exhaustion
requirement, holding that Petitioner had not exhausted potentially available
clemency remedies from the Governor and dismissing the appeal.
This case presents the question:
Must indigent death-sentenced state prisoners exhaust state remedies before a
federal court may authorize access to expert services under 18 U.S.C. § 3599(f)?

i

 TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
TABLE OF AUTHORITIES ......................................................................................... iv
RELATED CASES ......................................................................................................... v
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS ....................... 2
STATEMENT OF THE CASE ....................................................................................... 3
REASONS FOR GRANTING THE WRIT .................................................................... 7
I. Section 3599 creates a framework for federal courts to decide whether expert
services are “reasonably necessary for the representation of” indigent state
prisoners sentenced to death and permits courts to authorize the prisoners’
attorneys “to obtain such services.” ........................................................................... 8
II.
In contravention of Ayestas, the Eighth Circuit has created a novel,
atextual, and “more demanding” exhaustion-of-state-remedies requirement as a
precursor to a federal court’s application of § 3599. ................................................. 9
III. There was no impediment for the Eighth Circuit to address whether Mr.
Rhines made a sufficient showing for a federal remedy under § 3599 “to obtain”
expert services. ......................................................................................................... 14
CONCLUSION............................................................................................................. 16

ii

 APPENDIX CONTENTS
1.

United States Court of Appeals for the Eighth
Circuit Opinion (Oct. 25, 2019)............................................................... App. 001

2.

United States Court of Appeals for the Eighth
Circuit Judgment (Oct. 25, 2019) ........................................................... App. 004

3.

United States Court of Appeals for the Eighth
Circuit Mandate (Oct. 25, 2019) ............................................................. App. 005

4.

Motion for Expert Access (Feb. 7, 2018)................................................. App. 006

5.

Petitioner’s Amended Motion for Expert Access
To Conduct Evaluation (Mar. 9, 2016) ................................................... App. 036

6.

United States District Court, Western Division
of South Dakota, Memorandum and Order (Apr. 12, 2016) .................. App. 049

7.

United States Court of Appeals for the Eighth
Circuit Opinion (Aug. 3, 2018) ................................................................ App. 061

8.

Notice of Appeal (June 21, 2018) ............................................................ App. 116

9.

United States Court of Appeals for the Eighth
Circuit Order (Sept. 7, 2018) .................................................................. App. 119

10.

United States Court of Appeals for the Eighth
Circuit Order (Sept. 18, 2018) ................................................................ App. 120

11.

United States Court of Appeals for the Eighth
Circuit En Banc Order (Oct. 1, 2018) ..................................................... App. 121

12.

Order Appointing Counsel (Dec. 10, 2009)............................................. App. 122

13.

Order Appointing Counsel (July 29, 2016) ............................................ App. 123

14.

Supreme Court of the United States
Certiorari Denial (Dkt. No. 18-8029) (Apr. 15, 2019) ............................ App. 124

15.

Supreme Court of the United States
Certiorari Denial (Dkt. No. 18-8030) (Apr. 15, 2019) ............................ App. 126

16.

Notice of Parole Hearing Results (Dec. 12, 2018) .................................. App. 128

17.

Clemency Application Cover Letter (Nov. 9, 2018) ............................... App. 129

18.

Warrant of Execution (June 25, 2019) ................................................... App. 131

iii

 TABLE OF AUTHORITIES
Federal Cases

Ayestas v. Davis, 138 S. Ct. 1080 (2018) ........................................................... passim
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)
..................................................................................................................................... 14

Harbison v. Bell, 556 U.S. 180 (2009) ................................................................... 8, 13
Harris v. Nelson, 394 U.S. 286 (1969) ....................................................................... 10
Rhines v. Young, 139 S. Ct. 1567, 2019 WL 826425, 2019 WL 826426 (2019) ......... 4
Matthews v. White, 807 F.3d 756 (6th Cir. 2015) .................................................... 13
McFarland v. Scott, 512 U.S. 849 (1994) .................................................................. 12
Rhines v. Young, No. 18-2376, 2019 WL 5485274 (8th Cir. Oct. 25, 2019) ..... passim
United States v. Hayman, 342 U.S. 205 (1952) ........................................................ 10
United States v. N.Y. Tel. Co., 434 U.S. 159 (1977) ................................................. 10
Wilkins v. Davis, 832 F.3d 547 (5th Cir. 2016) ........................................................ 13
Federal Statutes
18 U.S.C. § 1651 ..................................................................................................... 4, 10
18 U.S.C. § 3599 .................................................................................................. passim
28 U.S.C. § 1254 ........................................................................................................... 1
State Statutes
S.D. Codified Laws § 23A-27A-19 ............................................................................. 15
S.D. Codified Laws § 23A-27A-31.1 ............................................................ 3, 4, 10, 15
S.D. Codified Laws § 24-14-1 ................................................................................. 6, 14
S.D. Codified Laws § 24-14-5 ..................................................................................... 14
Other
South Dakota Constitution, Article IV, Section 3 ...................................................... 5

iv

 RELATED CASES
South Dakota v. Charles Rhines, Seventh Judicial Circuit Court, County of
Pennington, Doc. No. 93-81, Judgment Entered: January 29, 1993.
South Dakota v. Charles Rhines, South Dakota Supreme Court, Judgment Entered:
May 15, 1996, published at 548 N.W.2d 415 (S.D. 1996)
Charles Rhines v. Douglas Weber, Seventh Judicial Circuit Court, County of
Pennington, County of Pennington, Doc. 96-1070, Judgment Entered October 8,
1998.
Charles Rhines v. Douglas Weber, South Dakota Supreme Court, Doc. No. 2000 SD
19, Judgment entered: March 3, 2000.
Charles Rhines v. Douglas Weber, Seventh Judicial Circuit Court, County of
Pennington, Doc. No. Civ. 02-924, Judgment entered March 25, 2013.
Charles Rhines v. Douglas Weber, South Dakota Supreme Court, Doc. No. Civ. 02924, Judgment Entered: August 21, 2013 (Order Denying Motion for Certificate of
Probable Cause)
Charles Rhines v. Douglas Weber, Seventh Judicial Circuit Court, County of
Pennington, Doc No. 51C93000081A0, Judgment Entered: October 24, 2017.
South Dakota v. Charles Rhines, South Dakota Supreme Court, Doc No. 28460,
Judgment Entered January 2, 2018.
South Dakota v. Charles Rhines, South Dakota Supreme Court, Doc No. 28444,
Judgment Entered January 2, 2018.
Charles Rhines v. South Dakota Department of Corrections, et. al., Second Judicial
Circuit Court, Minnehaha County, Doc. No. 49 CIV 18-002483, Judgment Entered:
June 28, 2019.
Charles Rhines v. South Dakota Department of Corrections, et. al., South Dakota
Supreme Court, Case No. 29083, Judgment Entered: October 25, 2019.
Charles Rhines v. South Dakota Department of Corrections, et. al, Second Judicial
Circuit Court, Case No. 49CIV002940, October 31, 2019
Charles Rhines v. South Dakota Department of Corrections, et. Al, South Dakota
Supreme Court, No. _____, Pending; Notice of Appeal Filed: October 31, 2019
Charles Rhines v. Douglas Weber, U.S. District Court for the District of South
Dakota, Case No. CIV 00-5020-KES, Order Staying Proceedings Pending
Exhaustion Entered: July 3, 2002

v

 Charles Rhines v. Douglas Weber, U.S. Court of Appeals for the Eighth Circuit,
Case No. 02-2990, Order Vacating District Court’s Order Entered: October 7, 2003
Charles Rhines v. Douglas Weber, U.S. Supreme Court, Case No. 03-9046, Decision
Vacating Eighth Circuit’s Order and Remanding Entered: March 30, 2005
Charles Rhines v. Douglas Weber, U.S. Court of Appeals for the Eighth Circuit,
Case No. 02-2990, Order Vacating District Court’s Order and Remanding Entered:
June 6, 2005
Charles Rhines v. Darin Young, U.S. District Court for the District of South Dakota,
Case No. CIV 00-5020-KES, Judgment Entered: February 16, 2016
Charles Rhines v. Darin Young, U.S. Court of Appeals for the Eighth Circuit, Case
Nos. 16-3360, 17-1060, Judgment Entered: August 3, 2018
Charles Rhines v. Darin Young, U.S. District Court for the District of South Dakota,
Case No. CIV 00-5020-KES, Order Denying Motion for Leave to Amend, Relief from
Judgment, and Expert Access Entered: May 25, 2018
Charles Rhines v. Darin Young, U.S. Court of Appeals for the Eighth Circuit, Case
No. 18-2376, Judgment Entered: October 25, 2019

vi

 PETITION FOR A WRIT OF CERTIORARI
Petitioner Charles Russell Rhines respectfully petitions for a writ of
certiorari to review the judgment of the U.S. Court of Appeals for the Eighth
Circuit.

OPINIONS BELOW
The October 25, 2019, opinion of the U.S. Court of Appeals for the Eighth
Circuit is published and appears in the Appendix at App. 001-003.1

JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). The Eighth Circuit
dismissed Mr. Rhines’s appeal on October 25, 2019, and issued both a judgment and
a mandate that same day. App. 004–005.

1

“App.” refers to the appendix to this petition for certiorari. Mr. Rhines also cites
the Appendix and Addendum to the earlier Eighth Circuit appellate briefing as
“CTA App.” and “CTA Add.”
1

 RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS
Title 18 United States Code § 3599(a)(2) provides:
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).
Section 3599(e) provides, in part:
Unless replaced by similarly qualified counsel upon the attorney’s own
motion or upon motion of the defendant, each attorney so appointed
shall represent the defendant throughout every subsequent stage of
available judicial proceedings . . . and all available post-conviction
process . . . and shall also represent the defendant in such competency
proceedings and proceedings for executive or other clemency as may be
available to the defendant.
Section 3599(f) provides, in part:
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).

2

 STATEMENT OF THE CASE
Charles Russell Rhines is a death-sentenced prisoner at the South Dakota
State Penitentiary. A state trial judge has scheduled his execution for the week
beginning November 3, 2019.
In 2017, while Mr. Rhines’s federal habeas appeal was pending in the Court
of Appeals for the Eighth Circuit, he began preparations for a possible clemency
petition to the Governor of South Dakota. A state statute impeded the investigation,
as it also had impeded investigation during earlier federal habeas proceedings in
the district court.2 Under the statute “[n]o other person may be allowed access to
the defendant without an order of the trial court except . . . the defendant’s counsel”
and other parties not related to these proceedings. S.D. Codified Laws § 23A-27A31.1.
Although Mr. Rhines has been previously evaluated by mental health
experts, he has never received neuropsychological testing, nor an evaluation by a
psychiatrist who had the benefit of a complete and thorough background
investigation. App. 007. Accordingly, his counsel retained two mental health experts
(a forensic psychiatrist and a neuropsychologist) and attempted to arrange
appointments for them to enter the South Dakota State Penitentiary to evaluate
him.

2

In 2016, attorneys who were then representing Mr. Rhines in the federal
habeas proceedings had moved unsuccessfully for an order from the district court
allowing a neuropsychologist to test and evaluate Mr. Rhines. App. 036–041; App.
054.
3

 The Department of Corrections, citing section 27A-31.1, would not admit the
experts into the prison to evaluate Mr. Rhines without a court order. Mr. Rhines
then moved the trial court to grant access to his experts in preparation for a
clemency application, should one become necessary. The state court denied the
motion. See App. 087–090. Mr. Rhines filed a notice of appeal, but the state moved
to dismiss on the ground that the order was not appealable. The South Dakota
Supreme Court dismissed the appeal in January 2018. See App. 091.
Mr. Rhines then turned to the federal courts, where an appeal from the
denial of habeas relief was pending in the Eighth Circuit.3 He began with a motion
in the district court.
Mr. Rhines is represented by two federal defender offices appointed and
funded pursuant to 18 U.S.C. § 3599. App. 122, 123. In February 2018, federal
counsel moved the district court for an order to allow a forensic psychiatrist and a
neuropsychologist to meet with Mr. Rhines and evaluate him. Counsel relied on 18
U.S.C. § 3599, the All Writs Act, 18 U.S.C. § 1651(a), and the Due Process Clause.

See App. 010, 012. Counsel supported the application with a letter-report by the

3

Proceedings on Mr. Rhines’s other appeals came to an end while the appeal
of the expert access issue was pending in the Eighth Circuit. The Eighth Circuit
affirmed the denial of his federal habeas petition, and denied a certificate of
appealability regarding a claim and newly admissible evidence that at least one
sentencing juror relied on stereotyping and animus on the basis of Mr. Rhines’s
sexual orientation to vote for death instead of life imprisonment, in August and
September, 2018. App. 061, 119. Rehearing and rehearing en banc were denied in
September and October 2018. App. 120, 121. This Court denied certiorari on both
matters in June 2019. Rhines v. Young, 139 S. Ct. 1567, 2019 WL 826425, 2019 WL
826426 (2019).
4

 forensic psychiatrist based on a review of Mr. Rhines’s records, previous expert
reports, and an annotated social history.
That expert concluded that “there is clear evidence that there are additional,
differential diagnostic options that require further investigation by way of both a
psychiatric and neuropsychological evaluation.” App. 030. He noted evidence that
Mr. Rhines suffered from a pattern of symptoms seen in children suffering from
Autism Spectrum Disorder, that he had suffered traumatic experiences—including
a brutal rape by four other soldiers—after enlisting in the Army at age seventeen,
that he had endured further stress associated with having been a closeted gay man
in the military, and that he had been exposed to toxins known to have a negative
impact on brain development. App. 031–032.
The district court denied the motion on jurisdictional grounds. See App. 111
(“[A]uthorizing a federally appointed and funded counsel’s representation under §
3599 does not give this court authority to supervise or control a state’s clemency
process. Thus, . . . § 3599’s authorization for representation alone does not require
this court to order respondent to produce Rhines for an evaluation . . . .” ).
Mr. Rhines timely appealed to the Eighth Circuit. App. 116. Briefing was
complete in November 2018. See Rhines v. Young, No. 18-2376
While Mr. Rhines continued to litigate the issue of obtaining expert services
that required evaluations at the prison, he sent a clemency application without the
expert evaluations to the the Board of Pardons and Parole in November 2018.
The South Dakota Constitution, Article IV, Section 3, grants the Governor
the authority to grant or deny executive clemency applications. In addition, S.D.
5

 Codified Laws § 24-14-1 gives the Governor discretion to delegate to the Board of
Pardons and Paroles the power to hear the applications and make non-binding
recommendations. The Board recommended denying Mr. Rhines’s November 2018
application in December 2018. App. 131. Mr. Rhines then requested a decision from
Governor Daugaard, App. 132, but the Governor left office on January 5, 2019,
without issuing one. Current Governor Kristi Noem then took office.4
Mr. Rhines’s § 3599 appeal remained pending in the Eighth Circuit during
this time. The State sought a death warrant, and the state court issued a warrant
that set Mr. Rhines’s execution for the week beginning November 3 to November 9,
2019. App. 134.
The Eighth Circuit heard oral argument in September 2019, and issued its
decision on October 25, 2019.5 Rhines v. Young, No. 18-2376, 2019 WL 5485274, at
*1 (8th Cir. Oct. 25, 2019) (per curiam); App. 001. It dismissed Mr. Rhines’s appeal
and concluded: “At the present time, with South Dakota clemency proceedings
commenced and the time for granting or denying imminent, the issues raised by
Rhines in this appeal are either moot or have not been fully exhausted.” Id. at *1;
App. 003. Judge Kelly concurred, writing that “[b]ased on the record before [the

4

Mr. Rhines has not received a formal denial of clemency from Governor
Noem, and the Governor has not received a clemency application with Mr. Rhines’s
experts’ complete assessments.
5

An action seeking declaratory and injunctive relief pertaining to Mr.
Rhines’s statutory right to choose the method of execution in effect at the time of his
sentencing was filed in the state Circuit Court for the Second Judicial Circuit and is
now pending in the South Dakota Supreme Court. See Rhines v. Leidholt et. al., 49
Civ. No. 19-002940 (2d Cir. Minnehaha Cty.).
6

 court], . . . it appears that Rhines has not fully exhausted his clemency-based
remedies.” Id. at *1; App. 003.
Mr. Rhines now files this petition for a writ of certiorari.
REASONS FOR GRANTING THE WRIT
This case presented the Eighth Circuit with a straightforward question
regarding a district court’s power to authorize an indigent death-sentenced state
prisoner’s attorneys “to obtain [expert] services” in accordance with 18 U.S.C.
§ 3599. Instead of answering the question, the Eighth Circuit grafted a novel and
threshold requirement onto the statute: A § 3599 applicant now must exhaust
potentially available state remedies before a federal court can decide whether to
“authorize” the applicant “to obtain . . . services” that are “reasonably necessary for
the representation.” 18 U.S.C. § 3599. This new exhaustion requirement has no
basis in the text of the statute. It imposes a “more demanding” standard than what
the statute requires of both federal courts and § 3599 applicants, as did the Fifth
Circuit’s consideration of procedural default and the novel test this Court rejected in

Ayestas v. Davis, 138 S. Ct. 1080, 1088 (2018).
The Eighth Circuit also indicated that this case might be moot, but it
identified no specific reason for that indication. In fact, there are no mootness
concerns: Mr. Rhines still has an opportunity to present information to the
Governor of South Dakota before his execution date; the Governor alone has the
power to grant any form of clemency; and Mr. Rhines is still seeking to exercise his
right under § 3599 “to obtain” expert services in aid of clemency.

7

 I.

Section 3599 creates a framework for federal courts to decide whether
expert services are “reasonably necessary for the representation of”
indigent state prisoners sentenced to death and permits courts to
authorize the prisoners’ attorneys “to obtain such services.”
Federal courts “may authorize” indigent capitally sentenced state prisoners

“to obtain [expert] services” that are “reasonably necessary for the
representation . . . in connection with issues relating to . . . the sentence,” including
executive clemency. See 18 U.S.C. § 3599(f); Harbison v. Bell, 556 U.S. 180, 194
(2009); Guide to Judiciary Policy, Vol. 7, Defender Services, Part A, Guidelines for
Administering the CJA and Related Statutes, Chapter 6: Federal Death Penalty
and Capital Habeas Corpus Representations,
http://www.uscourts.gov/sites/default/files/vol07a-ch06.pdf and
http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-6-ss680-clemency.
In particular, § 3599 requires that a court make “a finding that . . . expert . . .
services are reasonably necessary for the representation of the defendant.” 18
U.S.C. § 3599(f). If a court makes that finding, “the court may authorize the
defendant’s attorneys to obtain such services.” Id. (emphasis added). Also, “if so
authorized, [the court] shall order the payment of fees and expenses therefor under
subsection (g).” Id. (emphasis added).
This Court recently interpreted § 3599 and rejected a circuit’s creation of a
novel test that differed from the one required by the statute’s text. In Ayestas v.

Davis, 138 S. Ct. 1080 (2018), the Court was “concerned . . . with services provided
by experts, investigators, and the like.” Id. at 1092. “Such services must be

8

 ‘reasonably necessary for the representation of the [applicant]’ in order to be eligible
for funding.” Id. (quoting § 3599(f)).
Although the statute uses the term “reasonably necessary,” the Fifth Circuit
held “that a § 3599(f) funding applicant cannot show that investigative services are
‘reasonably necessary’ unless the applicant can show that he has a ‘substantial
need’ for those services.” Id. at 1088 (quotation marks and citation omitted). This
Court acknowledged that “[t]he difference between ‘reasonably necessary’ and
‘substantially need[ed]’ may be small.” Id. But the size of the difference did not stop
the Court from rejecting the Fifth Circuit’s “arguably more demanding” test. Id.
Moreover, the Fifth Circuit’s introduction of procedural default doctrine to “doom[]”
requests for funding to investigate further “exacerbated the problem” of the Fifth
Circuit’s statutory interpretation, and thus warranted this Court’s intervention. Id.
at 1093.
II.

In contravention of Ayestas, the Eighth Circuit has created a novel,
atextual, and “more demanding” exhaustion-of-state-remedies
requirement as a precursor to a federal court’s application of § 3599.
Mr. Rhines appealed to the Eighth Circuit as a § 3599 applicant seeking

authorization “to obtain [expert] services” from psychiatric and neuropsychological
experts to evaluate Mr. Rhines to reach professional diagnoses in aid of his petition
for executive clemency. Cf. § 3599(e) (referring to “proceedings for executive or other
clemency as may be available to the defendant”).
Mr. Rhines sought to exercise his rights under § 3599. Specifically, he argued
that expert services were “reasonably necessary” for his clemency proceedings and
that the psychiatric and neuropsychological experts he had retained should be
9

 allowed to meet with him “to obtain such [expert] services.” App. 012-013, 015. The
State, however, invoked a state law requiring a court order before such experts
would be allowed to see him. See S.D. Codified Laws § 23A-27A-31.1. With his
experts barred from accessing him, Mr. Rhines’s statutory right “to obtain [expert]
services” would be hollow as to any experts who require in-person examinations
before reaching professional opinions, just as his § 3599 right to counsel would be
frustrated if state authorities refused to permit him to meet with his attorneys.
Either way, the power of a federal court to authorize legal representation and
enable appointed counsel “to obtain such services” would be frustrated.6
This case thus presented to the Eighth Circuit an important question
regarding the nature of Mr. Rhines’s rights to expert assistance under § 3599.
Rather than deciding that question, the Eighth Circuit grafted a novel exhaustion
requirement onto the provisions of § 3599, and dismissed Mr. Rhines’s appeal for
not satisfying it. The Eighth Circuit did not address whether the district court had
the authority to grant the § 3599 motion. Instead, it relied on the fact that Mr.
Rhines, as a § 3599 applicant, had not “fully exhausted” the issues with regard to
state executive clemency proceedings. Rhines, No. 18-2376, 2019 WL 5485274, at
*1; App. 003. The court posited that “[t]he Governor may consider any and all
evidence she deems necessary to make her final decision, including the absence of
relevant expert evaluations and tests,” id. at *1; App. 002. By this reasoning,

6

See, e.g., 18 U.S.C. § 3599; 28 U.S.C. § 1651(a); United States v. N.Y. Tel.
Co., 434 U.S. 159, 172 (1977); Harris v. Nelson, 394 U.S. 286, 299 (1969); United
States v. Hayman, 342 U.S. 205, 220–22 (1952).
10

 because a governor could grant clemency based on a state’s frustration of any
number of federal statutory rights, the federal courts have no means to effectuate
such rights.
Judge Kelly concurred and focused on the exhaustion requirement the panel
had created. Instead of addressing whether the district court had authority to
ensure that a § 3599 applicant’s attorneys be able “to obtain [expert] services” in aid
of clemency in this case, Judge Kelly agreed with the majority that there was a
threshold exhaustion requirement: “Based on the record before [the court], however,
it appears that Rhines has not fully exhausted his clemency-based remedies.”

Rhines, No. 18-2376, 2019 WL 5485274, at *1 (Kelly, J., concurring); App. 003.
Judge Kelly concluded by stressing that “[i]t . . . appears that Rhines still has an
opportunity to seek and obtain relief by means of the State’s statutory and/or
constitutional framework.” Id. at *2 (Kelly, J., concurring); App. 003.
Just as the Fifth Circuit created a “substantial need” test on top of the
“reasonably necessary for the representation” requirement in the text of § 3599, the
Eighth Circuit has created an “exhaustion-of-state-remedies” requirement on top of
the textual requirements in § 3599, implicating both the “reasonably-necessary-forthe-representation” requirement and the meaning of the phrase “may authorize . . .
attorneys to obtain such services.” Cf. Ayestas, 138 S. Ct. at 1092–93. The Eighth
Circuit’s additional exhaustion requirement undoubtedly is “more demanding” than
the test provided in § 3599 itself. In fact, it is similar to the Fifth Circuit’s
requirement that a § 3599 applicant overcome the obstacle of procedural default

11

 before a district court “may authorize the [applicant]’s attorneys to obtain such
services.” See id. at 1094.
To be meaningful in practice, and thus to honor Congressional intent, access
to § 3599 services must precede the exhaustion of available clemency remedies.
After all, to require that a § 3599 applicant—who seeks the benefits of § 3599 to aid
her in state proceedings—first exhaust the remedies available in those proceedings
mirrors the circular logic this Court rejected in Ayestas. See Ayestas, 138 S. Ct. at
1094 (“To be clear, a funding applicant must not be expected to prove that he will be
able to win relief if given the services he seeks.”).
This Court has rejected similar reasoning with regard to § 3599’s predecessor
statute as well: “Requiring an indigent capital petitioner to proceed without counsel
in order to obtain counsel thus would expose him to the substantial risk that his
habeas claims never would be heard on the merits.” McFarland v. Scott, 512 U.S.
849, 856 (1994); see also id. at 860 (O’Connor, J., concurring in part and dissenting
in part) (“For such services[, including expert services,] to be meaningful in the
habeas context, they also must be available prior to the filing of a first habeas
petition.”). In the same manner, to allow the Eighth Circuit to impose a novel
exhaustion-of-state-remedies requirement before a petitioner can secure
authorization “to obtain” expert services that are “reasonably necessary,” whether
in connection with clemency or other forms of relief, would deprive § 3599 of
Congress’s intended meaning and impact.
Moreover, because § 3599(f) makes no distinction between clemency
applicants and habeas petitioners, the Eighth Circuit’s exhaustion requirement
12

 could affect all § 3599 applicants, not merely those seeking to obtain services for
clemency. Nothing in the Eighth Circuit’s opinion suggests that its new exhaustion
requirement would be limited to clemency petitioners or clemency-related remedies.
Clemency proceedings, by their nature, might involve different issues than habeas
proceedings,7 but the same requirements of § 3599(f) apply to both.
Even before Ayestas, courts applied the same framework to § 3599 applicants
seeking clemency as to applicants seeking other forms of relief. See, e.g., Matthews

v. White, 807 F.3d 756, 760 (6th Cir. 2015) (indicating that “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” (quoting Brown v.

Stephens, 762 F.3d 454, 460 (5th Cir. 2014), abrogated by Ayestas, 138 S. Ct. at
1093)); Wilkins v. Davis, 832 F.3d 547, 556–57 (5th Cir. 2016) (holding that the
expert services requested to prepare for clemency proceedings were not “reasonably
necessary”). Accordingly, the Eighth Circuit’s novel exhaustion requirement could
have broad application outside the clemency context.
Because the Eighth Circuit failed to address the question presented—
regarding the meaning of § 3599 and the federal courts’ power to authorize an
applicant’s attorney “to obtain” expert services which are “reasonably necessary” to

7

“‘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.’” Harbison, 556 U.S. at 192 (2009) (quoting Herrera v. Collins, 506
U.S. 390, 411–412 (1993)). “Far from regarding clemency as a matter of mercy
alone, [this Court] ha[s] called it ‘the fail safe in our criminal justice system.’” Id.
(quoting Herrera, 506 U.S. at 415) (footnote omitted).
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 executive clemency proceedings—and instead grafted a novel exhaustion
requirement onto § 3599, this Court should grant certiorari.
III.

There was no impediment for the Eighth Circuit to address whether Mr.
Rhines made a sufficient showing for a federal remedy under § 3599 “to
obtain” expert services.

The Eighth Circuit’s suggestion that this litgation is moot because “clemency
proceedings commenced and the time for granting or denying imminent” was also
mistaken. App. 003. Mr. Rhines continues to have a “requisite personal interest,”

see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000), in obtaining services from psychiatric and neuropsychological experts, which
would provide him with a meaningful benefit from his federal statutory right to the
assistance of experts during state clemency proceedings.
The Eighth Circuit observed that the “South Dakota Board of Pardons and
Paroles denied Rhines’s petition for clemency in December 2018,” and that the state
court has issued a warrant for Rhines’s execution during the first week of
November, Rhines, 2019 WL 5485274, at *1; App. 002, but these circumstances are
irrelevant to mootness. Regardless of the Board’s non-binding recommendation, Mr.
Rhines still seeks to submit current mental health opinions to the Governor, who
has yet to issue a formal decision on any clemency application. And the Governor,
alone, has the ultimate authority to decide whether and when to grant clemency.

See S.D. Codified Laws § 24-14-1; S.D. Codified Laws § 24-14-5. Nor has Mr. Rhines
delayed his efforts to obtain expert access, having made persistent efforts to obtain
such access for years. See supra Statement of the Case.

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 Finally, the Eighth Circuit’s suggestion that Mr. Rhines has not identified
any “impediments to Rhines’s asking the Governor to allow him access to his mental
health experts,” Rhines, 2019 WL 5485274, at *2 (Kelly, J. concurring); see also id.
at *1 (noting that “South Dakota law grants the Governor broad constitutional and
statutory clemency authority”), is also incorrect. While the Governor may conduct
an investigation, see S.D. Codified Laws § 23A-27A-19, South Dakota law bars Mr.
Rhines’s experts from entering the prison “without an order of the trial court,” S.D.
Codified Laws § 23A-27A-31.1. Thus, the Governor does not have the power to issue
an order to allow Mr. Rhines access to his psychiatric and neuropsychological
experts. Indeed, South Dakota conceded this limitation on the Governor’s power at
oral argument. See Rhines v. Young, 18-2376, Oral Argument on September 26,
2019, at 24:50 (explaining that the Governor cannot issue such an order and that
the only remedy is to obtain a court order).
Mr. Rhines made an ample showing that the psychiatric and
neuropsychological experts to whom he has requested access are reasonably
necessary for representation during his clemency proceedings. He has offered
evidence of childhood disorders and trauma that require further evaluation and
supported his § 3599 motion with an expert report that concluded that “there is
clear evidence that there are additional, differential diagnostic options that require
further investigation by way of both a psychiatric and neuropsychological
evaluation.” See supra Statement of the Case.
In spite of Mr. Rhines’s efforts, the federal courts have declined to consider
his motion or recognize their authority to grant the relief he seeks. This Court
15

 therefore should grant a writ of certiorari to address the Eighth Circuit's
interpretation of § 3599, and to ensure that Mr. Rhines can obtain services from the
psychiatrist and neuropsychologist retained in connection with his effort to obtain
clemency.

CONCLUSION

For the reasons discussed above, this Court should grant the petition for a
writ of certiorari.
Respectfully submitted,

It
Jason J. Tupman

Claudia Van Wyk*

Acting Federal Public Defender
Office of the Federal Public Defender
District of South Dakota and
District of North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
(605) 330-4489

Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520

*Counsel of Record
Member of the Bar of the Supreme Court

Counsel for Petitioner, Charles Russell Rhines

Dated: November 1, 2019

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