Stoker v. Johnson ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 94-11163
DAVID WAYNE STOKER,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(92-CV-148)
________________________________________________
October 25, 1996
Before GARWOOD, JONES and EMILIO GARZA, Circuit Judges.*
GARWOOD, Circuit Judge:
Attorney Stephen Latimer (Latimer) appeals the district
court’s order setting attorneys’ fees for his representation of
David Wayne Stoker (Stoker) throughout the course of his federal
habeas proceedings. We vacate and remand.
Facts and Proceedings Below
Latimer began representing Stoker in December 1990 as a
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
volunteer and served as his counsel during state habeas
proceedings, unsuccessfully challenging Stoker’s Texas capital
murder conviction and death sentence. On November 5, 1992, the
magistrate judge appointed Latimer to represent Stoker as of July
2, 1992, the day that Stoker’s federal habeas petition, which
Latimer had researched and drafted, was filed with the district
court. On August 31, 1992, Latimer filed a memorandum in support
of the federal habeas petition, and he filed an amended petition on
October 23, 1992. Latimer also prepared for an evidentiary hearing
before the magistrate judge which was held on May 19 and 20 of
1993. On July 11, 1994, after Latimer had submitted post-hearing
briefs and motions, the magistrate judge recommended that Stoker’s
requested habeas relief be denied. Latimer then filed objections
to the magistrate judge’s report with the district court on
September 23, 1994. On October 19, 1994, the district court
adopted the magistrate judge’s recommendation and dismissed
Stoker’s petition with prejudice. A motion to alter and amend the
judgment was denied on November 4, 1994.
On November 14, 1994, Latimer filed a motion for increased
fees, seeking a total fee of $30,900 for 247.2 hours of work based
on an hourly rate of $125.1 In calculating the fee award, the
magistrate judge deducted the hours that Latimer had spent in
preparing Stoker’s state habeas petition reasoning that “this Court
1
This total included 26.4 hours of in-court time and 220.8
hours of out-of-court time.
2
has neither an obligation nor the authority to pay Mr. Latimer for
work he did while the matter was pending before the state trial
court.” After subtracting the time attributable to Stoker’s state
habeas proceedings, the magistrate judge calculated Latimer’s out-
of-court time to be 140.9 hours. The magistrate judge then reduced
the time attributable to legal research from 80.85 hours to 40.85
hours “based upon a consideration of the amount of hours which were
required by the U.S. Magistrate Judge to legally research the
problems in this case.” As a consequence, the magistrate judge
reduced Latimer’s out-of-court time from 220.8 to 100.9 hours.
Latimer’s court time during the course of prosecuting Stoker’s
federal habeas petition was 10.1 hours. Although the magistrate
judge did not specify the hourly rate in his recommendation, it
appears that he employed an in-court rate of $60 per hour and an
out-of-court rate of $40 per hour, resulting in an award of $4,642
in attorneys’ fees and expenses. The magistrate attributed $606 of
this total to in-court time and $4,036 for out-of-court time.
Latimer filed objections to the magistrate judge’s report on
December 1, 1994. Latimer asserted in these objections that he was
entitled to fees of $125 per hour for both in-court and out-of-
court time for representation in a capital case, although he
indicated that he did not object to reductions of 39.5 hours in
out-of-court time and 16.3 hours for in-court time attributable to
the preparation and prosecution of the state habeas petition.
Nevertheless, Latimer asserted that he was entitled to additional
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compensation for time spent prior to his July 2, 1992, appointment
because it was “essential to the preparation and prosecution of the
federal claims.” Latimer also challenged the magistrate judge’s
reduction in billable time for research and writing from 80.85
hours to 40.85 hours. Finally, Latimer sought $75 an hour for 95
hours of work for attorney Virginia Lindsay, who had assisted him
in investigation and research, for a total of $7,125. Latimer
acknowledged that he had wholly omitted Lindsay’s time from his
application for increased fees.
On December 2, 1994, the district court overruled Latimer’s
objections and adopted the recommendation of the magistrate judge,
approving an award of $4,642 in fees and expenses. Latimer now
brings this appeal.
Discussion
I. Hourly Rate
The award of attorneys’ fees in a federal capital cases is
governed by 21 U.S.C. § 848(q)(10) which provides:
“(10)Notwithstanding the rates and maximum limits
generally applicable to criminal cases and any other
provision of law to the contrary, the court shall fix the
compensation to be paid to attorneys appointed under this
subsection . . . at such rates or amounts as the court
determines to be reasonably necessary to carry out the
requirements of paragraphs (4) through (9).”
The United States Judicial Conference has developed guidelines to
aid in the application of section 848, which we note have been
cited with approval by the United States Supreme Court in
interpreting this section. See In re Berger, 111 S. Ct. 628 (1991).
4
Section 6.02(A) of these Guidelines provides “an attorney appointed
to represent a defendant charged with a federal capital crime or
seeking to vacate or set aside a death sentence in a proceeding
under section 2254 or 2255 of title 28, U.S.C., shall be
compensated at a rate and in an amount determined exclusively by
the presiding judicial officer to be reasonably necessary to obtain
qualified counsel to represent the defendant, without regard to CJA
hourly rates or compensation maximums.” VII Guidelines For
Administration of Criminal Justice Act § 6.02(A). We note that the
Guidelines further urge that counsel in capital cases be
compensated “at a rate and in an amount sufficient to cover
appointed counsel’s general office overhead and to ensure adequate
compensation for representation provided,” but recommend that fees
be limited to an hourly rate of between $75 and $125 for both in-
court and out-of-court time. Id. § 6.02(B).
As it appears that the magistrate judge believed himself to be
constrained by the fee structure set forth in the Criminal Justice
Act,2 we vacate the district court’s December 2, 1994, order and
remand this matter to the district court for determination of the
proper hourly rate within the parameters set forth in the Judicial
Conference Guidelines.
II. Prefiling Investigative Work and Research
Latimer, relying on McFarland v. Scott, 114 S. Ct. 2568 (1994),
2
See 18 U.S.C. § 3006A(d)(1)(setting hourly rate at $60 for in-
court time and $40 for out-of-court time).
5
urges that he is entitled to compensation for 39.4 hours of work
done prior to the filing of Stoker’s federal habeas petition.
Specifically, Latimer seeks compensation for 8 hours of interviews,
2.5 hours of obtaining and reviewing records, 6 hours of legal
research and brief writing, and 22.9 hours of travel time. Latimer
argues that this investigation and research disclosed important
evidence which was essential to the preparation of Stoker’s federal
habeas petition. However, Latimer concedes that the information
discovered during these hours was also used to advance the state
habeas proceedings.
McFarland, upon which Latimer relies, holds that 21 U.S.C. §
848(q)(4)(B) “established a right to preapplication legal
assistance for capital defendants in federal habeas corpus
proceedings.” Id. at 2572. The Court reasoned that “[t]his
interpretation is the only one that gives meaning to the statute as
a practical matter” in light of the need for appointed counsel and
experts in order to effectively present a habeas petition. Id.
However, this Court has held that McFarland addresses only the
issue of timing of appointed counsel and not the scope of that
appointment, and that therefore section 848(q)(4)(B) provides for
the appointment of counsel after the conclusion of state court
proceedings. Sterling v. Scott, 57 F.3d 451, 457 (5th Cir.), cert.
denied, 116 S. Ct. 715 (1995). See also In re Joiner, 58 F.3d 143
(5th Cir. 1995)(holding inmate had no right to federally appointed
counsel or experts to exhaust state remedies). As Latimer concedes
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that much of this work occurred between December 1990 and July 1992
during the prosecution of the state habeas petition, these
authorities dictate that Latimer is not entitled to compensation
for prefiling work performed during this period. Moreover, we do
not read McFarland as construing section 848(q)(4)(B) to mandate,
or even authorize, fees for services rendered before both the
filing of a request in federal court for appointment of counsel and
the filing of a federal habeas petition. See id. at 2572-73 (“a
‘post-conviction proceeding’ within the meaning of section
848(q)(4)(B) is commenced by the filing of a death row defendant’s
motion requesting the appointment of counsel for his federal habeas
corpus proceeding”). Here no motion was filed in federal court
seeking appointment of (or compensation for) counsel prior to the
tendering of the federal habeas petition on July 2, 1992, and hence
there was no entitlement to fees for services rendered prior to
that date.
With respect to Latimer’s challenge to the reduction of
research time included in the fee award from 80.85 hours to 40.85
hours, we will not disturb the judgment of the district court. The
magistrate judge whose recommendations were adopted is much better
placed than are we to assess the amount of research required to
develop federal habeas claims in a case in which he presided over
the federal evidentiary hearings. We do not find the reductions to
be unreasonable.
As to Latimer’s request for compensation for the work
7
performed by Virginia Lindsay for assistance in respect to the
federal habeas proceedings, we find no error as Latimer concedes
that this request was not presented in his application for
increased fees nor until after the magistrate judge had rendered
his report and recommendation. However, we do not preclude the
court below from considering the award of such fees (to the extent
they are for work on or after July 2, 1992) on remand should it, in
its discretion, elect to do so.
Accordingly, the district court’s order awarding fees and
expenses is hereby
VACATED AND REMANDED.
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