IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-20344
Summary Calendar
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RICHARD EARL THOMAS,
Petitioner-Appellant,
versus
WAYNE SCOTT,
Director, Texas Department of
Criminal Justice, Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court for the
Southern District of Texas
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(March 3, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Richard Earl Thomas (Thomas) brought the
instant habeas corpus petition under 28 U.S.C. § 2254, pro se,
challenging his Texas conviction and incarceration for the felony
offense of unauthorized use of a motor vehicle, with punishment
enhanced by two prior felonies. He was allowed to proceed in forma
pauperis. After the state filed its answer and motion for summary
judgment, Thomas filed a motion for appointment of counsel, to
which the state then filed an opposition. Thomas filed a reply to
the opposition. The district court entered an order denying the
motion for appointment of counsel. Within thirty days thereafter,
Thomas filed a notice of appeal from that order. He also sought a
certificate of probable cause. The district court denied the
certificate of probable cause and also entered an order explaining
that the type and complexity of the case did not require the
assistance of counsel and that Thomas had demonstrated an ability
to adequately present his case. So far as the record reflects, no
determination has been made as to whether there will be an
evidentiary hearing or whether there will be any discovery. No
ruling on the merits of Thomas's habeas application has been made,
and it remains pending in the court below.
The threshold issue before us, which we must notice on our own
motion, is whether we have jurisdiction of this appeal. See Mosley
v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Since Thomas's habeas
case remains pending in the district court, and no final decision
on it has been made, it is plain that we do not have jurisdiction
under 28 U.S.C. § 1291. A decision is final and hence appealable
for purposes of section 1291 if it "'ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.'" Coopers & Lybrand v. Livesay, 98 S.Ct. 2454, 2457
(1978) (quoting Catlin v. United States, 65 S.Ct. 631, 633 (1945)).
The real question is whether we have jurisdiction over this
interlocutory appeal under the collateral order doctrine of Cohen
v. Beneficial Ind. Loan Corp., 69 S.Ct. 1221, 1225-26 (1949).
In Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir.
1977), we held that an order denying a request for counsel of an in
forma pauperis plaintiff in a Title VII suit was appealable under
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the collateral order doctrine. In White v. United States Pipe &
Foundry Co., 646 F.2d 203 (5th Cir. 1981), we entertained a similar
appeal in another Title VII case, although we did not address the
jurisdictional issue. In Robbins v. Maggio, 750 F.2d 405 (5th Cir.
1985), we held that state prisoners bringing in forma pauperis
civil rights actions against prison authorities under 42 U.S.C. §
1983 could immediately appeal interlocutory orders denying their
requested appointment of counsel. We there relied on Caston, and
held that it and White were not vitiated by the Supreme Court's
post-Caston decisions in Coopers & Lybrand, Firestone Tire & Rubber
Co. v. Risjord, 101 S.Ct. 669 (1981), and Flanagan v. United
States, 104 S.Ct. 1051 (1984), nor by our own decision in Gibbs v.
Paluk, 742 F.2d 181 (5th Cir. 1984), applying Flanagan to civil
cases.
More recently, in Marler v. Adonis Health Products, 997 F.2d
1141 (5th Cir. 1993), we declined to extend Robbins and Caston to
an indigent prisoner's attempted appeal of the denial of his
request for the appointment of counsel in his products liability
law suit. We there noted that "the First, Second, Third, Fourth,
Sixth, Seventh, Tenth, and Eleventh Circuits have held that
district court orders denying plaintiffs appointed counsel in civil
cases are not immediately appealable under the collateral order
doctrine," that the Ninth Circuit had held that such orders were
immediately appealable in Title VII cases but not in section 1983
cases, and that only the Fifth and Eighth Circuits have held that
such orders are immediately appealable in civil rights cases.
Marler at 1142 (footnotes omitted). Marler held that the
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challenged order was not effectively unreviewable on appeal from a
final judgment, one of the requirements of the collateral order
doctrine. Id. at 1143.
The only reported appellate decision of which we are aware
addressing the present issue has held that the denial of an
indigent section 2254 petitioner's request for counsel is not
immediately appealable under the collateral order doctrine.
Weygandt v. Look, 718 F.2d 952 (9th Cir. 1983). That holding was
made in Weygandt despite recognition that in that Circuit such
orders were immediately appealable in Title VII cases.
We conclude that the rule of Robbins and Caston should not be
extended to section 2254 cases, and that instead the approach of
Marler should be followed, at least in instances where there is no
evidentiary hearing to be had in the district court. Several
special factors distinguish section 2254 proceedings from those
under section 1983 or Title VII. In section 2254 cases appointment
of counsel is mandatory in the event that an evidentiary hearing is
to be held. See Rule 8(c) of the rules following section 2254.
There is no corresponding mandatory provision in Title VII or
section 1983 cases. Thus, if there is to be an evidentiary
hearing, the habeas petitioner will be represented by counsel.
This ameliorates the concern expressed in Robbins that an
individual without counsel has little hope of prosecuting his case
to a final resolution on the merits. See Robbins at 409, 413.
This is relevant to the issue of whether the denial of counsel will
be effectively unreviewable on appeal from the final judgment. It
is also relevant to another requirement of the collateral order
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doctrine, namely that the challenged order conclusively determine
the disputed issue. See Marler at 1143. If the district judge
should determine that an evidentiary hearing is appropriate, we
have no reason to doubt that he will then follow the requirement of
Rule 8(c) and appoint counsel.1 Another aspect of section 2254
procedures which we find highly relevant is the requirement of 28
U.S.C. § 2253 that, where the complained of confinement is pursuant
to state court process, an appeal by the prisoner requires a
certificate of probable cause. This reflects a more restrictive
attitude respecting appeals by section 2254 petitioners than that
which obtains in instances of appeals by section 1983 or Title VII
plaintiffs. It also seems to inferentially contemplate only an
appeal from the final disposition of the habeas petition. Another
special aspect of habeas corpus litigation is the general
requirement that it be promptly disposed of. See 28 U.S.C. § 2243.
See also Payton v. Rowe, 88 S.Ct. 1549, 1552 (1968). Interlocutory
appeals can only serve to delay disposition of such cases. Cf.
Flanagan, 104 S.Ct. at 1055 ("Because of the compelling interest in
prompt trials, the Court has interpreted the requirements of the
collateral-order rule exception to the final judgment rule with the
utmost strictness in criminal cases").
Finally, we note that our experience has been that pro se
1
Analogously, under Rule 6(a) of the rules following section
2254, the district court is not required to, but may, authorize
discovery, and if discovery is authorized, may appoint counsel
"[i]f necessary for effective utilization of discovery procedures."
Where the district court has not authorized discovery, but may do
so in the future, the court may then be more inclined to appoint
counsel at that time, pursuant to Rule 6(a).
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habeas petitioners are capable of perfecting, and very frequently
do perfect, appeals from the denial of habeas relief. Nothing in
our experience with these cases leads us to believe that allowance
of an interlocutory appeal in a case such as this is necessary or
needful to protect the rights of such petitioners or to preserve
for proper appellate review on appeal from final judgment
complaints of denial of counsel in the section 2254 proceeding.
We conclude that the order denying this section 2254
petitioner his request for the appointment of counsel is not
appealable under the collateral order doctrine, because it does not
conclusively determine the issue of whether counsel will ultimately
be appointed for the petitioner in the section 2254 proceeding, and
because petitioner's entitlement to counsel will not be effectively
unreviewable on appeal from the final judgment disposing of the
habeas petition.
Because there has been no final judgment under section 1291,
and because the requirements of the collateral order doctrine are
not met, we have no jurisdiction over the present appeal.
Therefore, the appeal is
DISMISSED FOR WANT OF JURISDICTION.
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