Whether a state violates the Due Process Clause of the Fourteenth Amendment by denying a capital post-conviction petitioner necessary expert assistance that a trial court has determined is constitutionally required, through administrative review procedures that lack appellate remedy

No question identified. : 2 authorized the services of a psychiatrist, a neurologist, a false confession expert, and a neuropsychologist, finding the services necessary to protect his constitutional rights. The trial court specifically authorized funding above the caps imposed by Tennessee Supreme Court Rule 13. On administrative review, the Director of the Tennessee Administrative Office of the Courts (AOC) and the Tennessee Supreme Court Chief Justice reduced the hourly rate for one expert and denied funding requests altogether for the remaining three experts. Tennessee has an appellate remedy when a post-conviction trial court denies necessary expert assistance. But Tennessee has no appellate remedy for the situation Mr. Dotson faced, where the AOC and the Chief Justice vacate a trial court’s ruling that expert assistance is necessary to effectuate a capital post-conviction petitioner’s constitutional rights. The post-conviction trial court denied relief, and the Tennessee Court of Criminal Appeals affirmed. Dotson v. State, No. W201901059SCR11PD, — S.W.3d. — ,2023 WL 4393296, at *1 (Tenn. July 7, 2023). 2. The Tennessee Supreme Court granted permission to appeal. Mr. Dotson argued that Tennessee’s denial of funds to secure expert assistance the trial court determined was necessary to protect his constitutional rights violated, inter alia, his federal procedural due process and equal protection rights. After briefing and argument, the Tennessee Supreme Court held: the provisions of Rule 13 for prior approval review are not unconstitutional, as applied; Tennessee did not unconstitutionally deny Mr. Dotson appellate review of the denial of expert funds; and Tennessee did not deprive Mr. Dotson of his statutory right to a full and fair postconviction hearing as a result of the denial of expert funds. Id. 3 3. The federal district court appointed undersigned counsel on August 3, 2023, and counsel has been working diligently to read the voluminous record and investigate potential claims for his federal habeas petition, which is due in January 2024. Additionally, undersigned counsel is the Chief of the Capital Habeas Unit (“CHU”) for the Federal Public Defender for the Middle District of Tennessee. Counsel supervises a staff of twenty. The CHU represents 25 men on Tennessee’s death row, as well a man on Texas death row, and two men on federal death row. Counsel’s obligations as both supervisor and counsel in these cases prevents her from being able to file a fulsome petition by October 5, 2023. 4. Counsel for Mr. Dotson has consulted with opposing counsel, Courtney N. Orr, who has stated that he has no opposition to a sixty-day extension in this matter. 5. This application corrects an error in the previously filed application for extension of time where counsel failed to attach a copy of the lower court opinion. Counsel apologizes to the Court for this error. 6. Counsel would also inform the Court that the application which was submitted online through the Court’s electronic filing system was placed in the federal express drop box at 2308 West End Avenue, Nashville, Tennessee on September 25, 2023, at approximately 5:30 PM. The automated telephone number for that location states that the pickup is at 6:00 PM. However, after checking the tracking number for the package, 773527039163, counsel learned that the package had not been picked up. Counsel spoke with federal express who stated that the drop box has an earlier pickup time and that the packages from the drop box were picked up at 5:17 PM on September 25, 2023. Thus, the court may receive the physical copies 4 of this filing and the original filing on the same date. Counsel respectfully requests that this filing be accepted as nunc pro tunc as September 25, 2023. For the foregoing reasons, this Court should grant this application for a sixtyday extension of time in which to file his petition for a writ of certiorari. Dated: September 26, 2023. Respectfully submitted, /s/ Ke