United States v. Vincent Johnson ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1779
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Vincent Sharnee Johnson, *
* [PUBLISHED]
Appellant. *
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Submitted: April 10, 2008
Filed: May 13, 2008
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Before BENTON, ARNOLD, and SHEPHERD, Circuit Judges
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PER CURIAM.
The Appellant, Vincent Sharnee Johnson, appeals the district court’s1 denial of
his motion that his appointed counsel be relieved and that substitute counsel be
appointed. We dismiss the appeal for lack of jurisdiction.
Johnson was indicted on charges of armed bank robbery in violation of 18
U.S.C. § 2113(a) & (d) and using, carrying, and brandishing a handgun during and in
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
relation to a crime of violence in violation of 18 U.S.C. § 924(c) and is awaiting trial.
Johnson was found to be indigent, and the Federal Public Defender was originally
appointed to represent him. Subsequently, the Federal Public Defender was permitted
to withdraw, and a private attorney was substituted. On January 30, 2007, Johnson
filed a motion asking that his appointed counsel be relieved and that substitute counsel
be appointed. The motion was denied. Johnson filed a second motion seeking
substitution of counsel. The district court also denied this motion, and Johnson now
appeals that dismissal.
Our jurisdiction is restricted to appeals from “final decisions of the district
courts . . . .” 28 U.S.C. § 1291. In order to be immediately appealable, a collateral
order “must conclusively determine the disputed question; . . . resolve an important
issue completely separate from the merits of the action; . . . [and] be effectively
unreviewable on appeal from a final judgment.” Flanagan v. United States, 465 U.S.
259, 265 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978));
Will v. Hallock, 546 U.S. 345, 349 (2006) (“[T]he collateral order doctrine
accommodates a small class of rulings, not concluding the litigation, but conclusively
resolving claims of right separable from, and collateral to, rights asserted in the
action,” and which are “too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the whole case is
adjudicated.” (internal citations and quotations omitted)). As the order denying
substitution of appointed counsel is subject to reconsideration by the district court as
the prosecution proceeds, and is effectively reviewable on appeal after final judgment,
at least two of the three requirements for appealability are not satisfied. See United
States v. Celani, 748 F.2d 363, 365 (7th Cir. 1984) (“An order denying the
appointment of counsel fails both the first and third prongs of the Coopers test.”); but
cf. Slaughter v. City of Maplewood, 731 F.2d 587, 588-89 (8th Cir. 1984) (holding
that an order denying appointment of counsel in a Civil Rights Act case is
immediately appealable). Accordingly, an order denying the appointment or
substitution of counsel in the criminal context is not immediately appealable.
In view of the foregoing, we dismiss this appeal for lack of jurisdiction.
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