In Re Quester Sterling-Suarez , 323 F.3d 1 ( 2003 )

BOUDIN, Chief Judge.

In April 2002, Quester Sterling-Suarez was indicted for federal crimes stemming from his alleged involvement in an armed car robbery in which one of the guards was killed. One of the charges permits the death penalty. See 18 U.S.C. § 924(j) (2000). He asked that “learned counsel” be appointed pursuant to 18 U.S.C. § 3005 (2000); the statute specifies that two counsel, one of whom “shall be learned in the law applicable to capital cases,” must at the defendant’s request be appointed “promptly.” The district court declined the request, ruling that appointment of learned counsel should await a determination by the Attorney General as to whether to seek the death penalty.

Sterling-Suarez sought mandamus from this court to compel an immediate appointment of learned counsel. This panel determined that the question of whether such appointments may be deferred presented an issue of continuing importance justifying advisory mandamus. On the merits, we concluded that statutory language supported petitioner’s reading, noting that learned counsel could be useful in seeking to dissuade the Attorney General from seeking the death penalty. Accordingly, we granted the writ, ordering that “[Beamed counsel shall be appointed forthwith.” In re Sterling-Suarez, 306 F.3d 1170, 1175 (1st Cir.2002).

Following the grant of the writ, the district court appointed “as learned counsel” Joseph Laws, the Federal Public Defender for the District of Puerto Rico, as well as a second lawyer as co-counsel. This followed a determination by the district judge that Laws personally would qualify as learned counsel because, other qualifications aside, he had recently served as co-counsel in a death penalty case, albeit one that ended without a trial. Throughout, Laws has maintained that no one in his office had the necessary qualifications and, in addition, that this appointment would unduly strain the limited resources of his heavily-burdened office.¹

Following his appointment, Laws filed a “motion to enforce mandamus” which is now before us. In this document, Laws argues that he does not qualify as “learned in the law applicable to capital cases” under the statute and that his prior experience as co-counsel in an untried capital case does not meet the requirement of the “prior experience ... as defense counsel in a capital case” prescribed by a local rule of the district court. P.R. Local R. 482(4). Laws urges that the district court’s designation of Laws as learned counsel is merely “ostensibl[e],” and that a further order should be issued “to enforce” the earlier writ.

What is perfectly clear is that the writ of mandamus previously issued by this court was concerned, simply and solely, with when learned counsel had to be appointed under the “promptly” language of the statute. True, our order said that learned counsel should be appointed forthwith, but an order is properly read in relation to the decision that supports it; and “[t]he reach of the mandate is generally limited to matters actually decided.” 18B Wright, Miller & Cooper, Federal Practice and Procedure § 4478.3 (2002). Questions as to who qualifies as learned counsel were not resolved in the proceeding leading up to the writ, and their resolution by the district court cannot violate our prior order.²

Whether Laws does qualify as learned counsel may well be open to debate. But unlike the meaning of the “promptly” requirement, the question as to the qualifications required of learned counsel is less than clear-cut and the question whether an individual lawyer qualifies as learned counsel may depend on circumstances that vary markedly from case to case. The lack of a clear answer, and the likelihood that no simple rule will dictate answers in other cases, make this a less obvious case for mandamus. In re Cargill, 66 F.3d 1256, 1259-60 (1st Cir.1995); United States v. Horn, 29 F.3d 754, 769-770 (1st Cir.1994).

Nothing in this decision prevents the filing of a new mandamus petition to challenge Laws’ designation as learned counsel. But such a petition would have to begin with a showing that this issue meets the ordinary qualifications for resolution by mandamus. Certainly death penalty cases are different, but Congress has not provided for automatic interlocutory appeals in disputes as to the appointment of counsel.

Accordingly, the motion to enforce mandamus is dismissed without prejudice to the filing, if petitioner is so inclined, of a mandamus petition seeking to present, the question of whether Laws is qualified as learned counsel.

It is so ordered.

1 . Prior to the writ, Laws' office had been appointed as counsel for petitioner without a judicial determination that anyone in the office qualified as learned counsel; as the district court then read the statute no such determination was required.

2 . See, e.g., Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir.), cert. denied, 522 U.S. 952, 118 S.Ct. 373, 139 L.Ed.2d 290 (1997); Jones v. Lewis, 957 F.2d 260, 262-63 (6th Cir.), cert. denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992); United States v. Tenzer, 213 F.3d 34, 41-44 (2d Cir.2000).