Carl Simon v. Government of the Virgin Islan ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-2715
CARL SIMON,
Appellant
v.
GOVERNMENT OF THE VIRGIN ISLANDS
On Appeal from the District Court of the Virgin Islands
(D. C. No. 3-03-cv-00024)
District Judges: Honorable Wilma A. Lewis
Argued on May 11, 2022
Before: JORDAN, MATEY, and ROTH, Circuit Judges
(Opinion filed March 30, 2023)
Joseph A. DiRuzzo, III
Daniel M. Lader (Argued)
DiRuzzo & Company
401 East Las Olas Boulevard
Suite 1400
Fort Lauderdale, FL 33301
Counsel for Appellant
Ian S.A. Clement (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Counsel for Appellee
O P I N I O N
ROTH, Circuit Judge:
Carl Simon is suing the Government of the Virgin Islands in a habeas corpus
action, collaterally attacking his criminal conviction. Simon seeks reversal of the District
Court’s order, denying appointment of counsel under federal law for his upcoming Virgin
Islands Superior Court evidentiary hearing. Because the District Court’s denial of court-
appointed counsel was not a final, appealable order, we do not have jurisdiction to hear
Simon’s appeal and will dismiss it.
I.
Simon was convicted of burglary, robbery, and felony murder in the Territorial
Court of the Virgin Island, now the Virgin Islands Superior Court. He then filed a petition
for a writ of habeas corpus, which the Superior Court rejected. The District Court, acting

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
as the only intermediate appellate court at the time, heard argument on the matter and
affirmed the Superior Court.
Simon then appealed to this Court. We held that the lower courts erred in two ways.
The Superior Court erred when it failed to conduct “an evidentiary hearing to address
Simon’s claim that the government had violated its obligations under Brady v. Maryland,
373 U.S. 83 (1963),” and that the District Court had erred when it denied “Simon’s claim
that his trial counsel . . . was ineffective without remanding the matter to the Superior Court
for an evidentiary hearing to address Simon’s allegations that his attorney had a conflict of
interest.”1 We then remanded this case to the Appellate Division of the District Court for
the Virgin Islands with instructions to remand to the Superior Court to conduct an
evidentiary hearing regarding the Brady violation and the conflict-of-interest claim.2
Simon asked the District Court to appoint counsel under the Criminal Justice Act
(CJA). The Magistrate Judge denied Simon’s request: “Inasmuch as the contemplated
proceedings consist of evidentiary hearings that the Superior Court should have conducted
in connection with the habeas petition in that court, this Court is hard-pressed to find a
basis under the Criminal Justice Act to appoint [counsel].”3 The Magistrate Judge also
rejected Simon’s request to reconsider her ruling, stating that “the ongoing habeas
proceedings in this case ‘are wholly local in nature, and this Court has no authority or
obligation to provide counsel to defendant in these circumstances.’”4
1
Appx. at 4.
2
Simon v. Gov’t of the V.I., 929 F.3d 118, 135 (3d Cir. 2019).
3
Appx. at 18.
4
Appx. at 5 (citation omitted).
3
Simon appealed that order to the Appellate Division of the District Court, and the
District Court affirmed the order. This appeal followed.
II.
We have jurisdiction to review final decisions of the District Court of the Virgin
Islands, Appellate Division.5 The “term ‘final decision’ has a well-developed and
longstanding meaning. It is a decision that ‘ends the litigation on the merits and leaves
nothing more for the court to do but execute the judgment.’”6
However, 28 U. S. C. § 1292 “allows appeals also from certain interlocutory orders,
. . . when they have a final and irreparable effect on the rights of the parties.”7 As we held
in Smith-Bey v. Petsock, 8 such interlocutory orders “must finally determine an important
claim of right separable from and collateral to the principal rights asserted in an action and
be effectively unreviewable on appeal from the final judgment.” “To be appealable as a
final collateral order, the challenged order must constitute ‘a complete, formal and, in the
trial court, final rejection,’ of a claimed right ‘where denial of immediate review would
render impossible any review whatsoever.’”9 In Smith-Bey, we concluded that denial of
court-appointed counsel was not a final, appealable order.10
5
48 U.S.C. § 1613a(c). The District Court had jurisdiction under the unique statutory
system of the Virgin Islands.
6
Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86 (2000) (citing Digital
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) and Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978)).
7
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949).
8
741 F.2d 22, 23 (3d Cir. 1984) (citations omitted).
9
Id. (internal and external citations omitted).
10
Id. at 26.
4
Simon argues that although “[a]t first blush, the case sub judice admittedly appears
to fall under the holding of Smith-Bey; however, upon closer examination, because of the
unique statutory scheme and system of appellate review involved, the ordinary
appointment of counsel analysis does not apply.”11 He argues that, because the underlying
territorial habeas action proceeded “from the Superior Court to the District Court (sitting
as an intermediate appellate court) and then to this Court (similar to a state court of last
resort)[,] . . . the federal court system is inextricably integrated into the underlying habeas
action by statutory design” and therefore the issue of federally appointed counsel must be
considered now.12
Despite the Virgin Islands’ unique statutory scheme, the District Court’s decision
about whether to appoint counsel does not render “impossible any review whatsoever.”13
When “the Appellate Division issues a record remand, the Appellate Division retains
jurisdiction over the appeal so that the matter remains pending before it.”14 If, however,
the Appellate Division issues a case remand, the Appellate Division relinquishes
jurisdiction over the appeal, meaning that the matter is no longer pending before it and the
Supreme Court of the Virgin Islands has jurisdiction over any subsequent appeals in the
matter.”15
11
Appellant’s Br. at 3.
12
Appellant’s Br. at 5–6.
13
Smith-Bey, 741 F.2d at 23.
14
V.I. Conservation Soc’y, Inc. v. V.I. Bd. of Land Use Appeals Golden Resorts LLLP, 10
F.4th 221, 230 (3d Cir. 2021) (citation omitted).
15
Id. (citation omitted).
5
Because we previously remanded this case with instructions to the Superior Court
to develop the factual record,16 a record remand, not case remand, took place. Thus, Simon
can appeal the denial of counsel to this Court after a final judgment is entered in his
underlying habeas case. Until then, under Smith-Bey, the District Court’s order is not
reviewable by interlocutory appeal. We accordingly lack jurisdiction.
III.
For these reasons, Simon’s appeal must be dismissed for lack of jurisdiction.
16
Simon, 929 F.3d at 130.
6