[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 6, 2001
No. 00-11776
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 97-01258-CV-T-25B
MARK JEFFERY SHEPHERD,
a.k.a. Mark Jeffrey Shepard,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 6, 2001)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Mark Jeffery Shepherd (“Shepherd”), a federal prisoner, appeals
the district court’s order denying his motion to vacate, set aside, or correct his
sentence, filed pursuant to 28 U.S.C. § 2255. We vacate the district court’s order
and remand this case with instructions to appoint counsel.
I.
Shepherd, who did not file a direct appeal of his 195-month sentence for
bank robbery offenses, filed his initial § 2255 motion in May 1997, alleging claims
of ineffective assistance of counsel. Shepherd subsequently filed an amended §
2255 motion in September 1997, and a second amended motion in 1998, in which
he added a claim that his plea was not knowing or voluntary. The government
opposed the second amended motion on its merits. Shepherd then filed a motion to
amend and another amended § 2255 motion. The government did not object to the
motion to amend and challenged the third amended motion on its merits.
The district court ordered an evidentiary hearing for Shepherd. At the
beginning of the hearing, Shepherd requested appointment of counsel. The court
denied his request at that time and questioned Shepherd regarding the grounds of
his § 2255 motion. Shepherd claimed that his court-appointed trial attorney failed
to investigate his case or advise him whether he should plead guilty. The
government responded that at the time Shepherd entered into his plea agreement,
he swore that he was satisfied with the performance of his attorney. The district
court then placed Shepherd under oath and questioned him further about his
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claims. During the course of the proceedings, Shepherd again requested an
attorney, specifically invoking Rule 8 of the Rules Governing § 2255 Motions.
The district court then denied as frivolous Shepherd’s § 2255 motion because
Shepherd stated at his plea colloquy that he was satisfied with his counsel’s
performance. The court, however, did not address the remaining claims presented
in Shepherd’s § 2255 motion, or his request for counsel under Rule 8 of the Rules
Governing § 2255 Motions.
In addition to denying Shepherd’s § 2255 motion as frivolous, the district
court denied Shepherd’s application for a certificate of appealability (“COA”).
The district court, however, permitted Shepherd to proceed in forma pauperis on
appeal. This court granted a COA on the issues of whether the district court erred
by (1) not appointing counsel for Shepherd during his evidentiary hearing
regarding his § 2255 motion, and (2) denying summarily the substantive claims
presented in Shepherd’s § 2255 motion to vacate.
II.
In this appeal, Shepherd argues that the district court violated Rule 8 of the
Rules Governing § 2255 Motions by failing to appoint counsel for him upon its
determination that a hearing was required. Shepherd notes that he requested the
court to appoint counsel and to determine whether the proceeding was an
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evidentiary hearing, but the district court refused; therefore, Shepherd contends
that the district court abused its discretion.
The government concedes in its brief that the district court likely erred in
refusing to appoint counsel for Shepherd, but argues that any error was harmless
because Shepherd was not entitled to an evidentiary hearing.
Rule 8(c) of the Rules Governing § 2255 Proceedings provides that “[i]f an
evidentiary hearing is required, the judge shall appoint counsel for a movant who
qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)[.]” Title 18,
§ 3006A of the United States Code allows for the appointment of counsel when the
interests of justice so require and the movant is financially unable to obtain
representation.
In our view, the district court erred in failing to appoint counsel to represent
Shepherd at the evidentiary hearing on his § 2255 motion. As an initial matter, we
observe that the proceedings clearly resembled an evidentiary hearing, despite the
district court’s unwillingness to categorize it as such, because the court placed
Shepherd under oath and questioned him extensively concerning the basis of his
claims. Additionally, the government concedes that, given the substance of the
proceeding, the hearing was an evidentiary hearing on Shepherd’s § 2255 motion.
Thus, because Shepherd qualified for representation under § 3006A, the district
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court, having determined that an evidentiary hearing was necessary, was obligated
under Rule 8 of the Rules Governing § 2255 Motions to appoint counsel for
Shepherd. Johnson v. Avery, 393 U.S. 483, 487-88 (1969) (recognizing that
federal courts generally appoint counsel in post-conviction proceedings only after a
petition for post-conviction relief passes initial evaluation and the court has
determined that the issues presented call for an evidentiary hearing).
III.
Having determined that the district court erred in failing to appoint counsel
to represent Shepherd at the evidentiary hearing, we must now address the question
of whether that failure is subject to harmless error review. Two circuits have held
that such an error is not amenable to harmless error review. United States v.
Iasiello, 166 F.3d 212, 214 (3d Cir. 1999); United States v. Vasquez, 7 F.3d 81, 83-
85 (5th Cir. 1993). The Iasiello court noted that the Fourth and Sixth Circuits, in
unpublished opinions, have also declined to adopt a harmless error analysis in this
context. Iasiello, 166 F.3d at 214 n.4.
We agree with our sister circuits and hold that the failure to appoint counsel
under Rule 8 of the Rules Governing § 2255 Motions is not subject to harmless
error analysis. Our reasoning is also based on the language of Rule 8(c) itself. The
rule provides that, “[a] judge shall appoint counsel.” (Emphasis added.) This
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language is mandatory and does not suggest any reliance on harmless error
analysis. Because we must vacate the district court’s order dismissing
Shepherd’s § 2255 motion and remand this case for the appointment of counsel and
a corresponding evidentiary hearing, we decline to address the second issue
presented in this appeal.
VACATED and REMANDED.
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