Clark v. Johnson

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 01-10573

JACK WADE CLARK,

Petitioner,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent.

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GARY A. TAYLOR,

Appellant.

Appeal from the United States District Court
For the Northern District of Texas, Lubbock
January 2, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The district court granted Gary Taylor’s motion to appoint him

to represent Jack Wade Clark, a Texas prisoner who had been

convicted of capital murder in 1991 and sentenced to death. With

Taylor’s assistance, Clark filed a 28 U.S.C. § 2254 petition, which
was denied by the district court. Both the district court and this

court denied Clark a certificate of appealability to appeal the

district court’s final judgment. Clark’s petition to the Supreme

Court for a writ of certiorari was also denied. Clark v. Johnson,

531 U.S. 831 (2000). The State of Texas executed Clark on January

9, 2001.

Following Clark’s execution, Taylor submitted a CJA1 voucher

to the district court requesting compensation and reimbursement of

expenses incurred in connection with a state clemency proceeding

brought on Clark’s behalf. The district court denied the voucher,

adopting the reasoning set forth in Chambers v. Johnson, 133 F.

Supp. 2d 931 (E.D. Tex. 2001), holding that 21 U.S.C. § 848(q)(8)

(relating to the payment of court appointed counsel in death

penalty cases) did not authorize compensation for representation in

state clemency proceedings.

Taylor filed a timely notice of appeal to this Court.

This Court ordered the parties to address whether a circuit

court has appellate jurisdiction to review the district court’s

order denying reimbursement for activities by appointed counsel

relating to state clemency matters. The State has informed the

Court that it does not have any interest or role in this appeal and

therefore does not intend to file a brief.

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Criminal Justice Act (CJA).

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 Appellate Jurisdiction

This Court must consider, sua sponte if necessary, whether

appellate jurisdiction exists. In re Kaiser Aluminum and Chemical

Co., 214 F.3d 586, 589 (5th Cir. 2000), cert. denied, 121 S. Ct.

1354 (2001). As a court of limited jurisdiction, this Court has

authority to hear appeals only from “final decisions” under 28

U.S.C. § 1291, interlocutory decisions under 28 U.S.C. § 1292, non-

final judgments certified as final under Federal Rule of Civil

Procedure 54(b), or some other non-final order or judgment to which

an exception applies. Briargrove Shopping Ctr. Joint Venture v.

Pilgrim Enter., Inc., 170 F.3d 536, 538 (5th Cir. 1999).

In general, a district court’s order is an appealable final

decision if it “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Coopers &

Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v.

United States, 324 U.S. 229, 233 (1945)). In addition, the

jurisprudential exception known as the collateral-order doctrine

permits an appeal of a narrow group of interlocutory orders if the

district court’s ruling conclusively determines the disputed

question, resolves an important issue that is completely separate

from the merits, and cannot effectively be reviewed on appeal from

a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949); United States v. Brown, 218 F.3d 415, 420 (5th

Cir. 2000), cert. denied, 531 U.S. 1111 (2001).

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 At issue here is the district court’s ruling that counsel was

not entitled to compensation and reimbursement under § 848(q) for

expenses incurred in connection with Clark’s state clemency

proceeding. Whether the court has appellate jurisdiction to

consider an appeal from the district court’s order denying

compensation under § 848(q)(4)(B) is a question of first impression

in this Court.

Taylor argues that the district court’s order is reviewable as

either a final order or as an appealable collateral order. We

agree. Attorney fee decisions made at or after a final ruling on

the merits are ordinarily appealable. See Companioni v. Barr, 962

F.2d 461, 463 (5th Cir. 1992); Shipes v. Trinity Indus., Inc., 883

F.2d 339, 344 (5th Cir. 1989) (discussing fees in an EEOC case);

Dardar v. Lafourche Realty Co., 849 F.2d 955, 959 (5th Cir. 1988)

(discussing fees in an APA case); Ruiz v. Estelle, 609 F.2d 118,

119 (5th Cir. 1980) (discussing fees under the Civil Rights Act, 42

U.S.C. § 1988). Taylor concedes that some courts have ruled that

a district court’s decision to reduce compensation under the CJA

are non-appealable administrative decisions. Taylor maintains,

however, that this case concerns an interpretation of a federal

statute by a federal district judge, not an administrative decision

about the appropriate amount of fees for an otherwise authorized

activity.

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 On the other hand, the award of fees under § 848(q) is not

dependent upon the outcome of the case. § 848(q)(10). The

opposing party (the United States or State) does not receive notice

that a fee determination will be made by the judge, and no

adversary hearing is required. Nor does § 848(q) expressly provide

for appellate review.

The instant order fully and finally disposes of Taylor’s

request for reimbursement, an issue that is separate from the

merits of the federal habeas corpus proceeding. The district court

necessarily interpreted the meaning of “proceedings for executive

or other clemency” under § 848(q)(8) to exclude state clemency

proceedings. Such a decision is qualitatively different from

approving or disapproving the amount of expenses reasonably and

necessarily incurred by counsel as it definitively determines

whether such services are compensable under the Act as a matter of

law. We conclude therefore that under either theory this Court has

appellate jurisdiction as to the district court’s order.

Clemency Proceedings

Taylor argues that the plain language of § 848(q) requires

that counsel pursue state clemency proceedings and therefore that

the federal court must compensate counsel for this representation.

This Court reviews a district court’s interpretation of a

federal statute de novo. United States v. Rasco, 123 F.3d 222, 226

(5th Cir. 1997).

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 Section 848(q)(4)(B) authorizes the appointment of counsel in

any post conviction proceeding under 28 U.S.C. § 2254, seeking to

vacate or set aside a death sentence, for any indigent defendant.

§ 848(q)(4)(B). “[E]ach attorney so appointed shall represent the

defendant through every subsequent stage of available judicial

proceedings, . . . and all available post-conviction process,

together with applications for stays of execution and other

appropriate motions and procedures, and shall also represent the

defendant in such competency proceedings and proceedings for

executive or other clemency as may be available to the defendant.”

§ 848(q)(8). Compensation “shall be paid to attorneys appointed

under this subsection.” § 848(q)(10)(A). Subject to certain

amount limitations, fees and expenses paid for reasonably

necessary, authorized services are also reimbursable.

§ 848(q)(10)(B).

Whether the phrase “proceedings for executive or other

clemency as may be available” includes state clemency proceedings

for which counsel may be compensated is a question of first

impression in this Court.

The Eleventh Circuit has held that an inmate under death

sentence who has not exhausted all available state remedies is not

proceeding under § 2254 so as to be entitled to appointment of

attorney under § 848(q). In re Lindsey, 875 F.2d 1502, 1506-07

(11th Cir. 1989) (denying mandamus to compel the appointment of

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counsel and a psychiatrist). The court explained that “the terms

‘subsequent stage[s] of available judicial proceedings’ and

‘competency proceedings and proceedings for executive or other

clemency,’ as used in § 848(q)(8), do not encompass within their

meanings any proceedings convened under the authority of a State.”

Id. at 1506.

This Court favorably cited Lindsey in Sterling v. Scott, 57

F.3d 451 (5th Cir. 1995), in which this Court held that an indigent

state death row petitioner had no right to appointed and paid

counsel under § 848(q)(4)(B) for the purpose of exhausting his

state post-conviction claims. Id. at 458. The court concluded in

Sterling that § 848(q)(8), which provides for the continued

representation by the appointed attorney throughout “every

subsequent stage of available judicial proceedings,” did not allow

counsel to continue his representation for the purpose of

exhausting state remedies in state court. Id. at 457. The court

read § 848(q)(8) in light of § 848(q)(4)(B), which provides that

the right to counsel applies only in connection with federal

proceedings. Id. The court specifically agreed with Lindsey “that

allowing the defendant to obtain federally appointed counsel for

use in state postconviction habeas proceedings would have the

effect of supplanting state-court systems for the appointment of

counsel in collateral review cases.” Id. at 458 (internal

quotation and citation omitted).

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 In Chambers v. Johnson, the Eastern District of Texas followed

the analysis in Sterling and Lindsey in denying counsel’s claim for

compensation and reimbursement for representing the petitioner in

his state clemency proceedings. Chambers, 133 F. Supp. 2d at 935-

36. The district court below relied upon Chambers in denying

counsel’s claim for compensation and reimbursement.

Taylor argues that Chambers misapplies Sterling because

clemency proceedings are fundamentally different from state post-

conviction proceedings raising unexhausted claims. Taylor notes

that clemency proceedings are not “judicial proceedings” and thus

“wholly different from state judicial post-conviction proceedings.”

As Taylor correctly argues Sterling does not address the

precise question presented here, i.e., whether representation in

state clemency proceedings is required and compensable. The

Sterling court’s discussion of § 848(q), and its reasons for not

reading § 848(q) broadly, are nevertheless instructive. The court

has continued to construe § 848(q)(4)(B) narrowly. See Cantu-Tzin

v. Johnson, 162 F.3d 295, 298-99 (5th Cir. 1998) (denying

petitioner’s request for the appointment of counsel under §

848(q)(4)(B) because the § 2254 petition would have been undeniably

time-barred). We conclude therefore that the phrase “proceeding

for executive or other clemency as may be available to the

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defendants” as it appears in § 848(q)(8) does not apply to state

clemency proceedings. Accordingly, we affirm the Order of the

district court.

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