United States Court of Appeals,
Eleventh Circuit.
No. 95-6676
Non-Argument Calendar.
Varnall WEEKS, Petitioner-Appellant,
v.
Ronald E. JONES, Commissioner of Corrections, Respondent-
Appellee.
Nov. 22, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-95-V-613-N), Robert E. Varner, Judge.
Before HATCHETT, Chief Judge, and TJOFLAT and BIRCH, Circuit
Judges.
PER CURIAM:
This appeal presents the first-impression issue for our
circuit of whether the right to appointment of counsel in capital
habeas corpus cases under 21 U.S.C. § 848(q)(4)(B) depends on the
ultimate merits of a death-sentenced prisoner's habeas claims.
After appointing counsel, the district judge sua sponte found that
the federal habeas petition was frivolous, set aside the
appointment order under Federal Rule of Civil Procedure 60(a), and
thereby prevented payment of the capital petitioner's attorneys.
We REVERSE.
I. BACKGROUND
The petitioner-appellant, Varnall Weeks, was executed on May
12, 1995.1 Preceding his execution, Weeks's attorneys2 challenged
1
The factual and procedural background of this case is
contained in this court's first denial of habeas relief in Weeks
v. Jones, 26 F.3d 1030, 1032-33 (11th Cir.1994), cert. denied, --
- U.S. ----, 115 S.Ct. 1258, 131 L.Ed.2d 137 (1995), and in the
his death sentence in state and federal court on the basis of his
mental incompetence to be executed.3 Because Weeks was indigent,
his attorneys represented him without any payment from their
client, and they received no compensation for their representation
from the State or courts of Alabama. Following the denial of
Weeks's second request for postconviction relief by the Alabama
courts, his counsel filed a petition for writ of habeas corpus in
federal court in the Middle District of Alabama on May 10, 1995, as
well as a motion requesting appointment as counsel under 21 U.S.C.
§ 848 and a motion to proceed in forma pauperis.4 That same day,
the district court granted the motions for appointment of counsel
and to proceed in forma pauperis, but it denied Weeks's petition
for habeas relief on the merits and denied a stay.
On May 11, 1995, Weeks's counsel appealed the district court's
denial of a certificate of probable cause and sought a stay of
execution in this court. A majority panel addressed the merits of
his incompetency claim and concluded, based on the factfindings of
the state trial judge and the evidence presented at the state
denial of his second petition for habeas relief in Weeks v.
Jones, 52 F.3d 1559, 1560 (11th Cir.), cert. denied, --- U.S. ---
-, 115 S.Ct. 1841, 131 L.Ed.2d 846 (1995).
2
Weeks's attorneys, who originally were appointed and who
seek compensation for their representation, are James McMillin,
Stephen B. Bright and Barry J. Fisher.
3
Weeks's counsel argued that he was a paranoid
schizophrenic, who went to his death convinced that it was part
of a millennial religious scheme to destroy sinful mankind and
that he would be transformed into a tortoise and reign over the
universe.
4
On May 10, 1995, Weeks's counsel also filed motions for
appearance pro hac vice, temporary stay of execution, and
examination by mental health experts.
evidentiary hearing, that Weeks was not mentally unfit to be
executed. Weeks v. Jones, 52 F.3d 1559, 1561-62 (11th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 1841, 131 L.Ed.2d 846 (1995).
Accordingly, this court denied a stay of execution and a
certificate of probable cause. The dissent noted that Weeks's case
was the first time that our court had addressed the issue of the
constitutional standard for competency to be executed. Id. at
1574-75 (Kravitch, J., concurring in part and dissenting in part).
In July, 1995, Weeks's counsel contacted the district court
clerk's office because they had not yet received their vouchers
needed to submit fee requests. On August 2, 1995, the district
court sua sponte issued an order setting aside its previous order
appointing counsel for Weeks under § 848(q) "pursuant to Rule
60(a), Federal Rules of Civil Procedure." R2-22-2. In setting
aside his former order granting appointment of counsel, the
district judge explained his reconsideration resulting in his
denying the attorneys' former motion for appointment of counsel:
This Court was recently contacted by Petitioner's
attorneys regarding not having received their CJA 30 Vouchers
issued to appointed attorneys in death penalty proceedings.
In reviewing the file, this Court found on May 10, 1995, it
erroneously granted the Motion for Appointment of Counsel
filed May 10, 1995, by Attorneys James McMillin, Stephen B.
Bright and Barry J. Fisher. Also on May 10, 1995, this Court
correctly granted said attorneys' motion for admission pro hac
vice and correctly granted Petitioner leave to proceed in
forma pauperis in this Court. However, on May 11, 1995, this
Court denied Petitioner's request for a certificate of
probable cause based on this Court's finding that the grounds
upon which Petitioner was basing his appeal were frivolous and
that said appeal was not taken in "good faith" within the
meaning of Coppedge v. United States, 369 U.S. 438 [82 S.Ct.
917, 8 L.Ed.2d 21] (1962). During all of these proceedings,
it was this Court's intention to only allow Petitioner to
proceed in forma pauperis without having to pay a filing fee;
however, it was never the intention of this Court to appoint
attorneys to represent the Petitioner.
Id. at 1-2 (emphasis in Italics added). This appeal from Weeks's
counsel ensued.5
II. ANALYSIS
Under the Anti-Drug Abuse Act of 1988, § 7001(b), 21 U.S.C.
§ 848(q)(4)(B) (1988), Congress established an absolute right to
counsel for indigent death-sentenced prisoners seeking federal
habeas relief:
In any post conviction proceeding under section 2254 or
2255 or Title 28, seeking to vacate or set aside a death
sentence, any defendant who is or becomes financially unable
to obtain adequate representation ... shall be entitled to the
appointment of one or more attorneys....
6
21 U.S.C. § 848(q)(4)(B). "On its face, this statute grants
indigent capital defendants a mandatory right to qualified legal
counsel ... "[i]n any [federal] post conviction proceeding.' "7
McFarland v. Scott, 512 U.S. 849, ----, 114 S.Ct. 2568, 2571, 129
5
The Alabama Attorney General did not file a responsive
brief in this appeal. In a letter to the Clerk of the Eleventh
Circuit Court of Appeals, the Assistant Attorney General who
represented respondent-appellee, Commissioner of Corrections,
Ronald E. Jones, explained that, since Weeks's counsel sought
attorneys' fees from the federal government pursuant to a federal
statute and not respondent, Jones did not have a position on the
issue raised by Weeks's counsel in this court.
6
As a procedural matter, "[a]lthough a CPC is required in
order to appeal the denial of habeas corpus relief, there is no
such requirement in order to appeal the denial of the appointment
of counsel under § 848(q)(4)(B)." Barnard v. Collins, 13 F.3d
871; 878 n. 6 (5th Cir.), cert. denied, 510 U.S. 1102, 114 S.Ct.
946, 127 L.Ed.2d 363 (1994); accord Sterling v. Scott, 57 F.3d
451, 454 n. 3 (5th Cir.1995), cert. denied, --- U.S. ----, 116
S.Ct. 715, 133 L.Ed.2d 669 (1996) (noting that "[t]he same rule
should apply to the retention of such counsel").
7
This court has held that § 848(q)(4)(B) does not require
the federal government to finance counsel for the exhaustion of
postconviction claims in state court. In re Lindsey, 875 F.2d
1502 (11th Cir.1989) (per curiam).
L.Ed.2d 666 (1994) (quoting 28 U.S.C. § 848(q)(4)(B)) (alteration
in original) (emphasis added). Because of the complexity of
federal habeas corpus jurisprudence, even for attorneys, and the
stringent pleading requirements, the Court recognized that "[a]n
attorney's assistance prior to the filing of a capital defendant's
habeas corpus petition is crucial" to adjudication of an indigent
capital petitioner's claims on the merits. Id. at ----, 114 S.Ct.
at 2572; see Sloan v. Delo, 54 F.3d 1371, 1380 n. 6 (8th Cir.1995)
("The McFarland Court held that because Congress created a
statutory right to counsel for capital defendants during federal
habeas proceedings, counsel should be appointed before a petition
is actually filed to permit assistance in its preparation."
(citing 21 U.S.C. § 848(q)(4)(B)), cert. denied, --- U.S. ----, 116
S.Ct. 728, 133 L.Ed.2d 679 (1996).
Because § 848(q)(4)(B) mandates counsel for indigent capital
prisoners to prepare federal habeas petitions, a substantive,
merits assessment of the petition is irrelevant to the appointment
of counsel. 21 U.S.C. § 848(q)(4)(B); see McFarland, 512 U.S. at
----, 114 S.Ct. at 2572 ("In adopting § 848(q)(4)(B), Congress thus
established a right to preapplication legal assistance for capital
defendants in federal habeas corpus proceedings."); In re Joiner,
58 F.3d 143, 144 (5th Cir.1995) (per curiam) ("McFarland ... held
that 21 U.S.C. § 848(q)(4)(B) entitles prisoners seeking federal
habeas relief to court-appointed counsel for the preparation of a
habeas petition.... The Court ... reason[ed] that appointed
counsel ... are necessary to prepare and present federal habeas
cases effectively."). Thus, the district court's determination
that Weeks's habeas petition was frivolous after his execution is
inconsequential to the appointment of his counsel. See In re
Joiner, 58 F.3d at 144 ("McFarland addressed the timing of
appointment of counsel, not the scope of appointment.").
Furthermore, the Supreme Court has explained that indigent
litigants' claims are "frivolous" when they "lack[ ] an arguable
basis either in law or in fact."8 Neitzke v. Williams, 490 U.S.
319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989).
"Factual allegations are frivolous for purpose of § 1915(d) when
they are "clearly baseless;' legal theories are frivolous when
they are "indisputably meritless.' " Battle v. Central State
Hosp., 898 F.2d 126, 129 (11th Cir.1990) (per curiam) (quoting
Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833). This court also has
held that a frivolous analysis under 28 U.S.C. § 1915(d) involves
a determination of " "whether there is a factual and legal basis,
of constitutional dimension, for the asserted wrong.' " Clark v.
Georgia Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir.1990)
(quoting Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987))
(emphasis added).
Rather than being baseless, Weeks's history of mental health
evaluation and treatment is documented in the record,9 and he based
8
"[T]he purpose of the frivolity review is to filter
non-paying litigants' lawsuits through a screening process
functionally similar to the one created by the financial
disincentives that help deter the filing of frivolous lawsuits by
paying litigants." Cofield v. Alabama Pub. Serv. Comm'n, 936
F.2d 512, 515 (11th Cir.1991).
9
In affirming the denial of Weeks's first habeas corpus
petition, we detailed his previous mental health history. Weeks
v. Jones, 26 F.3d at 1034-42. This court's opinion, pursuant to
Weeks's second appeal from denial of habeas relief, discussed the
his second habeas appeal on his incompetency to be executed under
Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986) (plurality opinion). While other circuits have "adopted
different legal definitions of Eighth Amendment mental competency
for execution" following Ford, the dissent notes that this circuit
"addresses this issue for the first time in this case." Weeks, 52
F.3d at 1574, 1575 (Kravitch, J., concurring in part and dissenting
in part). In raising the competency-to-be-executed issue, Weeks's
counsel stated a arguable constitutional claim, which had not been
decided by this court and which precluded the district court's
reconsidered determination that Weeks's second habeas petition was
frivolous after Weeks's execution.10 A claim that is arguable,
although ultimately unsuccessful, "must be treated like the claims
brought by paying litigants and should survive frivolity review."
Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th
Cir.1991).
Significantly, the statute specifically contemplates that a
capital inmate shall have federally appointed counsel in habeas
proceedings involving competency to be executed. 21 U.S.C. §
merits of Weeks's contention that he was incompetent to be
executed, Weeks, 52 F.3d at 1561-62, and included, as an
appendix, the state trial court's factual findings and legal
conclusions following a thorough evidentiary hearing on the
competency-to-be-executed issue, id. at 1562-74.
10
We note that the district court based its determination
that Weeks's second habeas petition was frivolous on Coppedge and
did not cite the Court's subsequent statement on frivolous
indigent claims under § 1915 in Neitzke. Importantly, the
district court did not address § 848(q)(4)(B), which mandates
counsel to assist indigent prisoners in filing habeas petitions
in capital cases.
848(q)(8).11 In a successive death penalty case that raised
competency to be executed, the Fifth Circuit reversed the district
court's denial of appointment of counsel under § 848(q)(4)(B) and
explained that "[o]n its face, § 848(q)(4)(B) does not condition
the appointment of counsel on the substantiality or
nonfrivolousness of petitioner's habeas claims." Barnard v.
Collins, 13 F.3d 871, 879 (5th Cir.), cert. denied, 510 U.S. 1102,
114 S.Ct. 946, 127 L.Ed.2d 363 (1994). In connection with Weeks's
habeas petition, the district court correctly appointed Weeks's
counsel, who had represented him in his state postconviction
proceedings as well as prepared his habeas petition without
compensation. The district court erred in revisiting its former
ruling based on its assessment of the merits of Weeks's habeas
petition after his execution.
Finally, the district court erroneously based its sua sponte
order that denied Weeks's counsels' appointment on Federal Rule of
11
With respect to assistance from appointed counsel for
indigent capital prisoners during judicial proceedings, including
competency, the statute provides:
Unless replaced by similarly qualified counsel
upon the attorney's own motion or upon motion of the
defendant, each attorney so appointed shall represent
the defendant throughout every subsequent stage of
available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial,
appeals, applications for writ of certiorari to the
Supreme Court of the United States, 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.
21 U.S.C. § 848(q)(8) (emphasis added).
Civil Procedure 60(a), which permits corrections "at any time" of
"[c]lerical mistakes" in judgments and orders "arising from
oversight or omission." Fed.R.Civ.P. 60(a). While the district
court may correct clerical errors to reflect what was intended at
the time of ruling, "[e]rrors that affect substantial rights of the
12
parties ... are beyond the scope of rule 60(a)." Mullins v.
Nickel Plate Mining Co., 691 F.2d 971, 973 (11th Cir.1982) (citing
Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th
Cir.1976)); see United States v. Whittington, 918 F.2d 149, 150 n.
1 (11th Cir.1990) (noting that "for Rule 60(a) purposes, a mistake
of law is not a "clerical mistake,' "oversight,' or "omission' "
(quoting Warner, 526 F.2d at 1212)); see also Truskoski v. ESPN,
Inc., 60 F.3d 74, 77 (2d Cir.1995) (per curiam) ("That provision,
which states in pertinent part that "[c]lerical mistakes in
judgments ... may be corrected by the court at any time,' permits
only a correction for the purpose of reflecting accurately a
decision that the court actually made." (quoting Fed.R.Civ.P.
60(a)). "Although Rule 60(a) clerical mistakes need not be made by
the clerk, they must be in the nature of recitation of amanuensis
mistakes that a clerk might make. They are not errors of
12
Interestingly, the district judge did not consider Weeks's
petition for habeas corpus relief frivolous when he granted
counsels' motion for appointment on the same day that the habeas
petition was filed. Furthermore, the district judge ruled
inconsistently in the challenged order, issued sua sponte after
Weeks's execution and his attorneys' attempt to obtain
compensation. He stated that he correctly granted counsels'
motion for admission in that court pro hac vice for the sole
purpose of representing Weeks, but that he erroneously granted
their motion for appointment of counsel because the habeas
petition was frivolous, and that he never intended to appoint
attorneys to represent Weeks.
substantive judgment." Jones v. Anderson-Tully Co., 722 F.2d 211,
212 (5th Cir.1984) (per curiam) (emphasis added); see Paddington
Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) ("An error
in a judgment that accurately reflects the decision of the court or
jury as rendered is not "clerical' within the terms of Rule 60(a)."
(quoting Fed.R.Civ.P. 60(a)). "A district court is not permitted,
however, to clarify a judgment pursuant to Rule 60(a) to reflect a
new and subsequent intent because it perceives its original
judgment to be incorrect." Burton v. Johnson, 975 F.2d 690, 694
(10th Cir.1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1879, 123
L.Ed.2d 497 (1993). Therefore, the district court not only erred
legally in its subsequent sua sponte denial of Weeks's counsels's
appointment motion, but also it erred procedurally in using Rule
60(a) as authority for its changed ruling.
III. CONCLUSION
Weeks's postconviction counsel appeal the district court's
subsequent, sua sponte denial of their motion for appointment of
counsel when they sought payment for their federal habeas
representation of Weeks, after the court previously had granted
this motion. Because the district court erred legally and
procedurally in denying Weeks's counsels' appointment motion, we
REVERSE. We direct the district court to reinstate its former
order granting Weeks's counsels' appointment motion and to proceed
with compensating them appropriately for their habeas
representation of Weeks.