Javier Pena-Calleja v. Melissa Ring

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Pasco M. Bowman and Michael J. Melloy (PUBLISHED) [4058723] [12-3487]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3487
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Javier Pena-Calleja
lllllllllllllllllllllPetitioner - Appellant
v.
Melissa Ring
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: November 7, 2012
Filed: July 26, 2013
[Published]
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Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges.
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PER CURIAM.
Javier Pena-Calleja appeals the district court's denial of his motion to appoint
counsel to represent him in his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court's order denying appointment of counsel was not a final
order, nor was it appealable under the collateral order doctrine. Therefore, we
dismiss Pena-Calleja's appeal for lack of jurisdiction.

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The district court's order denying appointment of counsel did not offer a ruling
on the merits of Pena-Calleja's petition. Thus, it was not a final order, and we
generally lack jurisdiction over appeals of non-final orders. 28 U.S.C. § 1291;
Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) ("Federal appellate
jurisdiction generally depends on the existence of a decision by the District Court that
ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.") (internal quotation marks omitted). However, the collateral order
doctrine provides for a narrow exception to this final judgment rule if the non-final
order (1) "conclusively determine[s] the disputed question," (2) "resolve[s] an
important issue completely separate from the merits of the action," and (3) is
"effectively unreviewable on appeal from a final judgment." Flanagan v. United
States, 465 U.S. 259, 265 (1984) (quoting Livesay, 437 U.S. at 468).
Interlocutory appeals of orders denying appointment of counsel in habeas
proceedings do not fall within the collateral order doctrine for at least two reasons.
First, the district court's denial of appointment of counsel is not a conclusive
determination; the district court may still appoint counsel for Pena-Calleja at a later
time. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam) (noting the
district court "may appoint counsel at any stage of the case if the interests of justice
require"). Second, the denial of a motion to appoint counsel is clearly reviewable on
appeal of a final order. See, e.g., Morris v. Dormire, 217 F.3d 556, 558–59 (8th Cir.
2000) (affirming denial of habeas petition and reviewing and affirming denial of
motion for appointment of counsel); McCall v. Benson, 114 F.3d 754, 755–56 (8th
Cir. 1997) (reviewing denial of habeas petition and reviewing district court's denial
of motion to appoint counsel for abuse of discretion). Thus, a district court's order
denying appointment of counsel in habeas proceedings does not fall within the
collateral order doctrine's narrow exception to the final judgment rule.

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Our circuit has not previously published an express ruling on this issue, but
other circuits to address the question have held that orders denying appointment of
counsel are not immediately appealable in the context of habeas proceedings. See,
e.g., United States v. Yousef, 395 F.3d 76, 77 (2d Cir. 2005) (per curiam) (noting no
jurisdiction to review interlocutory denial of motion to appoint counsel); Thomas v.
Scott, 47 F.3d 713, 715–16 (5th Cir. 1995) (finding no jurisdiction to review
interlocutory denial of motion to appoint counsel); Weygandt v. Look, 718 F.2d 952,
953 (9th Cir. 1983) (denial of appointment of counsel in habeas proceeding "does not
fall within the narrow exception" to the final judgment rule) (internal quotation marks
omitted). We join those circuits and hold an order denying appointment of counsel
in a habeas proceeding is not immediately appealable.1
We dismiss Pena-Calleja's appeal for lack of jurisdiction.
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1

We have previously exercised jurisdiction over non-final orders denying
appointment of counsel in Title VII and § 1983 cases. See, e.g., Nelson v. Shuffman,
476 F.3d 635, 636 (8th Cir. 2007); Slaughter v. City of Maplewood, 731 F.2d 587,
588–89 (8th Cir. 1984). However, those decisions do not control the issue of
appealability in habeas cases. The Ninth Circuit also recognized that non-final orders
denying appointment of counsel in Title VII cases were immediately appealable but
expressly held such precedent did not require it to exercise jurisdiction over non-final
orders denying appointment of counsel in the habeas context. Weygandt, 718 F.2d
at 953 ("An interlocutory order denying appointment of counsel in a habeas corpus
proceeding does not fall within the 'narrow exception[']. . . . This court's decision . .
. that such an order in a Title VII action is appealable is not controlling."). The Fifth
Circuit similarly recognized that orders denying appointment of counsel were
immediately appealable in Title VII and § 1983 cases but not in habeas proceedings.
Thomas, 47 F.2d at 715–16.
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