Carlton Michael Garyv.Warden, Georgia Diagnostic Prison
Carlton Gary, a Georgia death-row prisoner convicted of three murders, pursued three appeals concerning funding and representation under 18 U.S.C. § 3599. In one appeal, he sought funds for experts to testify live at a clemency hearing about bite-mark and biological evidence previously presented during federal habeas proceedings. In another, his appointed lawyers challenged the denial of compensation for work on a state extraordinary motion for a new trial. In the third, Gary sought funds for an expert to assist with DNA testing in a state court motion that might support that new-trial effort. The Eleventh Circuit affirmed the denial of live clemency-expert funds, holding that transcripts of the experts’ prior testimony were sufficient in the circumstances and that live appearances were not reasonably necessary. It dismissed the fee-voucher appeal for lack of appellate jurisdiction, treating the ruling as an administrative compensation decision rather than a final judicial order. It also affirmed the denial of DNA-testing funds, holding that a state DNA motion did not ordinarily follow federal habeas proceedings and therefore fell outside the federally funded representation required by § 3599. Judge Wilson dissented, arguing that clemency is an independent process, the fee ruling finally resolved the statutory scope of representation, and § 3599 covered the state motion and related expert assistance.
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