[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14124 ELEVENTH CIRCUIT
OCTOBER 20, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 98-00230-CR-T-23
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY HARVEY DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 20, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Stanley Davis appeals the district court’s modification of a lump-sum
restitution order to require periodic restitution payments of $100 per month. Davis
contends that he should have been afforded counsel at the district court hearing on
his motion to modify, and he alleges that the court abused its discretion in fixing
the scheduled payment amount at $100 per month. After careful consideration of
the parties’ briefs and a thorough review of the record, we affirm.
I. Right to Counsel
The existence of a right to counsel is a question of law that we review de
novo. United States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009). “Pro se filings
. . . are entitled to liberal construction.” Mederos v. United States, 218 F.3d 1252,
1254 (11th Cir. 2000). Although the government contends that the Davis’s claim
should be reviewed only for plain error, Davis’s pro se motion for appointment of
counsel—if liberally construed—preserved his argument for appeal. We review a
district court’s calculation of restitution for an abuse of discretion. See Cani v.
United States, 331 F.3d 1210, 1212 (11th Cir. 2003).
Indigent parties may have a right to an attorney based on three different
sources. Webb, 565 F.3d at 794. First, a party may have a constitutional right
under the Sixth Amendment’s guarantee of counsel. “It is well-established that
2
under the Sixth and Fourteenth Amendments, a criminal defendant is entitled to
effective assistance of counsel during trial, during the penalty phase of a capital
case, and at various critical stages of a criminal prosecution where substantial
rights of a criminal accused may be affected.” Williams v. Turpin, 87 F.3d 1204,
1209 (11th Cir. 1996) (citations and quotations omitted). Although a criminal
defendant has a constitutional right to counsel during the first appeal, once that
appeal is complete, the “obligation of ensuring equal access to the court system is
no longer constitutionally required.” Id. We have “consistently held that there is
no federal constitutional right to counsel in postconviction proceedings.” Barbour
v. Haley, 471 F.3d 1222, 1227 (11th Cir. 2006).
In some circumstances, defendants also have a right to counsel based on
Fifth Amendment guarantees of due process. The Supreme Court has interpreted
the Fifth Amendment to require counsel to be appointed whenever “fundamental
fairness” would demand it. Webb, 565 F.3d at 794 (citing Gagnon v. Scarpelli,
411 U.S. 778, 790, 93 S. Ct. 1756, 1763 (1973)). In Gagnon, the Supreme Court
found that due process might entitle the petitioner to counsel in a probation
revocation hearing, in which resolution of the dispute required the petitioner to
marshal facts and examine witnesses. See 411 U.S. at 786-90, 93 S. Ct. at
3
1761–64. The Court concluded that due process concerning the appointment of
counsel should be examined on a case-by-case basis. Id. at 788, 93 S. Ct. at 1763.
Finally, a defendant has a statutory right to counsel under 18 U.S.C. §
3006A. According to the statute, representation is provided to a financially
eligible defendant in certain circumstances, including: when the defendant is
entitled to appointment of counsel under the Sixth Amendment to the Constitution;
when the defendant “faces the loss of liberty in a case, and Federal law requires
the appointment of counsel”; and whenever the court determines that the interests
of justice so require, including when a defendant seeks relief under 28 U.S.C. §§
2241, 2254, or 2255. 18 U.S.C. § 3006A(a)(1), (2). Section 3006A(c)—the
subsection on which Davis relies—states in pertinent part: “Duration and
Substitution of Appointments. — A person for whom counsel is appointed shall
be represented at every stage of the proceedings from his initial appearance before
the United States magistrate judge or the court through appeal, including ancillary
matters appropriate to the proceedings.” 18 U.S.C. 3006A(c) (emphasis in heading
original).
Davis was not entitled to counsel under any of these three sources.
Although a defendant is entitled to counsel during direct appeal, he does not have
4
a Sixth-Amendment right to counsel during collateral attacks on his sentence. See
Barbour, 471 F.3d at 1227; United States v. Berger, 375 F.3d 1223, 1226–27
(11th Cir. 2004). More specifically, the Sixth Amendment does not guarantee a
right to counsel at a hearing in which a defendant requests the court’s leniency in
modifying a validly imposed restitution order. See Webb, 565 F.3d at 794.
Because Davis had already exhausted his direct appeal, his corresponding Sixth
Amendment right to counsel has already been extinguished. See Barbour, 471
F.3d at 1227; Williams, 87 F.3d at 1209.
Further, the district court did not deprive Davis of his due process rights
under the Fifth Amendment, as Davis’s self-representation did not result in a
fundamentally unfair hearing. Even assuming Davis suffered from a legitimate
mental condition, it did not impair his ability to present his motion to the court or
to report his financial condition, such that the hearing was fundamentally unfair.
Davis was able to present a complete picture of his finances that allowed the court
to arrive at a $100-per-month payment schedule. Beyond an unsupported
allegation, Davis identifies no specific mental or physical disability that impaired
his ability to receive a fair disposition of his claim, and he otherwise identifies no
defect that deprived him of his due process rights under the Fifth Amendment.
5
Finally, Davis does not have a statutory right to counsel. Section 3006A
provides that an indigent defendant is entitled to appointed counsel when, among
other circumstances, the Sixth Amendment so requires, federal law mandates
representation, or the defendant faces the loss of liberty. See 18 U.S.C. §
3006A(a). None of those conditions is present here. Nor was the hearing within
the ambit of the “ancillary matters” contemplated by § 3006A(c), despite Davis’s
claims to the contrary. As we have noted, the legislative history of § 3006A(c)
indicates that “ancillary matters” are “limited to proceedings comprehended within
the action for which the appointment was made.” In re Lindsey, 875 F.2d 1502,
1508 (11th Cir. 1989) (citing H.R. Rep. No. 1546 (1970), reprinted in 1970
U.S.C.C.A.N. 3982, 3989). We have read “ancillary matters” to mean “those
procedural mechanisms employed within the context of a federal action to insure
the protection of a person’s rights in that action.” Webb, 565 F.3d at 795
(emphasis in original) (quotation omitted). Davis’s present motion is not a direct
appeal, and the district court hearing was neither a sentencing nor a resentencing
hearing. Davis’s motion to modify or correct a restitution order imposed nearly
ten years earlier was not comprehended within the original action and is therefore
6
not “ancillary” to that proceeding. Consequently, § 3006A does not provide a
statutory right to counsel in this case.
II. Restitution Payment
A district court must order restitution payments accounting for the full
amount of each victim’s losses. 18 U.S.C. § 3664(f)(1)(A); Cani, 332 F.3d at
1214. The controlling statute permits modification of a restitution order upon a
showing of a material change in the defendant’s circumstances. 18 U.S.C.
§ 3664(k). When calculating the appropriate payment schedule, the court must
consider: the financial resources and other assets of the defendant, including
whether any of these assets are jointly controlled; projected earnings and other
income of the defendant; and any financial obligations of the defendant, including
obligations to dependents. 18 U.S.C. § 3664(f)(2). A restitution order may direct
the defendant to make only nominal periodic payments when the facts of record
demonstrate that “the economic circumstances of the defendant do not allow the
payment of any amount of a restitution order, and do not allow for the payment of
the full amount of a restitution order in the foreseeable future under any
reasonable schedule of payments.” 18 U.S.C. § 3664(f)(3)(B).
7
The district court did not abuse its discretion in ordering Davis to pay $50
per paycheck, for a total $100-per-month restitution payment. Davis’s submission
to the district court indicated that he earned a salary of $676 per two-week pay
period. Further, he claimed that he would be unable to comply with the court’s
order, largely due to the $600 per month he was expected to pay in rent. However,
he recently moved from a house for which he paid $350 per month in rent, and he
did not explain why, when forced to relocate, he chose an apartment that cost $250
more per month. Additionally, Davis does not address the money he claims to be
owed, in excess of $100,000, or its impact on his ability to comply with the court’s
restitution order. More importantly, the financial documentation that Davis
provided to the court outlined his financial resources, his income, and his debts.
The district court considered and discussed these documents with Davis. Because
the court considered Davis’s financial resources, projected earnings and other
income, and financial obligations when arriving at its restitution payment
schedule, it fulfilled its statutory mandate. See 18 U.S.C. § 3664(f)(2).
Accordingly, the district court did not abuse its discretion in ordering Davis to pay
$100 per month in restitution.
AFFIRMED.
8