Christopher Wilkins v. Lorie Davis, Director

Case: 15-70033 Document: 00513631840 Page: 1 Date Filed: 08/10/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-70033 United States Court of Appeals
Cons. w/ No. 16-70002 Fifth Circuit
FILED
August 10, 2016
CHRISTOPHER CHUBASCO WILKINS, Lyle W. Cayce
Clerk
Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeals from the United States District Court
for the Northern District of Texas
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
The State of Texas sentenced Petitioner-Appellant Christopher
Chubasco Wilkins to death for the murders of Willie Freeman and Mike Silva.
Having unsuccessfully pursued federal habeas corpus relief, Wilkins now
requests investigative and expert funding to support a state clemency petition
and a successive state habeas petition.
The district court denied Wilkins’s motion for funding. The district court
also denied Wilkins’s attorney compensation for her work on Wilkins’s case.
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For the reasons discussed below, we affirm the district court’s order
denying Wilkins’s motion for investigative and expert funding. However, we
vacate the district court’s order denying Wilkins’s counsel compensation and
remand for further proceedings consistent with this opinion.
I.
A.
A jury found Wilkins guilty of capital murder. The facts of Wilkins’s
crime are set forth in our prior opinion in this case. 1
After unsuccessfully pursuing relief in state court, Wilkins sought
habeas corpus relief in federal district court. Wilkins also asked the district
court for funding for investigative and expert services to support his federal
habeas petition. Specifically, Wilkins requested “nearly $92,000 in funding to
pay for a fact investigator, a mitigation specialist, a neuropsychologist, and a
prison expert to help develop his claims for relief.” 2
The district court denied Wilkins’s federal habeas petition. The court
also denied Wilkins’s motion for investigative and expert funding.
Wilkins sought a certificate of appealability (“COA”) from this Court.
Wilkins also appealed the district court’s order denying his motion for funding.
We appointed Hilary Sheard to represent Wilkins in connection with his
appeal.
We ultimately denied Wilkins’s COA petition. 3 We further ruled that the
district court did not abuse its discretion by denying Wilkins’s motion for
expert and investigative funding. 4
1 See Wilkins v. Stephens, 560 F. App’x 299, 301-02 (5th Cir. 2014) (per curiam).
2 Id. at 302.
3 Id. at 303-15.
4 Id. at 315.
2
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B.
Having failed to obtain federal habeas relief, Wilkins asked the district
court for investigative and expert funding to support a state clemency petition
and a successive state habeas petition. Wilkins seeks funding to hire the
following investigators and experts:
Fact Investigator: $10,500
Mitigation Specialist: $15,000
Neuropsychologist: $12,000
Prison Expert: $1,000
__________________________________________________________
GRAND TOTAL: $38,500
The district court denied Wilkins’s motion. Wilkins now appeals.
C.
After Wilkins filed his notice of appeal, Sheard sought compensation
from the district court “for work performed in both the district court and in
state court since the State announced its intention, in June 2015, to seek an
execution date.” 5 Sheard accordingly submitted two Criminal Justice Act
(“CJA”) vouchers to the district court – one for compensation for work
performed in the federal district court, and another for work performed in state
court.
The district court denied payment on both vouchers. The district court
concluded that our order appointing Sheard to represent Wilkins on appeal did
not authorize her to represent Wilkins in subsequent federal or state
proceedings. The district court therefore concluded that it had no “obligation
Specifically, Sheard sought payment for legal services rendered in connection with
5
(1) the instant motion for federal funding for investigative and expert services; (2) a state
court motion for appointment of a DNA/toolmark expert; (3) a state court motion for retention
of juror information; (4) a hearing in state court to set an execution date; and (5) a federal
court motion to stay Wilkins’s execution.
3
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to pay Sheard for any legal work or expenses incurred by her in her
representation of Wilkins.”
Sheard now appeals the district court’s order denying payment on her
two CJA vouchers. We have consolidated the two appeals.
II.
We first address whether the district court erred by denying Wilkins’s
motion for investigative and expert funding to support Wilkins’s state
clemency petition. 6
A.
“We review the denial of funding for investigative or expert assistance
for an abuse of discretion.” 7 “[A] COA is not necessary to appeal the denial of
funds for expert assistance” or investigative services. 8
Barb.
18 U.S.C. § 3599 authorizes federal funding for indigent petitioners
charged with a crime punishable by death. “Upon a finding that investigative,
expert, or other services are reasonably necessary for the representation of the
defendant,” the district court “may authorize the defendant’s attorneys to
obtain such services on behalf of the defendant and, if so authorized, shall
order the payment of fees and expenses therefor.” 9
6 We reject the State of Texas’s argument that we lack appellate jurisdiction to decide
this issue. See Brown v. Stephens, 762 F.3d 454, 458-59 (5th Cir. 2014) (rejecting identical
argument).
7 Id. at 459 (citing Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009); Smith v.
Dretke, 422 F.3d 269, 288 (5th Cir. 2005)).
8 Smith, 422 F.3d at 288 (citing Hill v. Johnson, 210 F.3d 481, 487 n.3 (5th Cir. 2000)).
9 18 U.S.C. § 3599(f).
4
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As relevant here, the district court may, in the exercise of its sound
discretion, authorize federal funding for investigative and expert services in
subsequent state clemency proceedings. 10
[W]hen a petitioner requests funds for investigative services for
the purpose of clemency proceedings, the petitioner must show
that the requested services are reasonably necessary to provide the
Governor and Board of Pardons and Paroles the information they
need in order to determine whether to exercise their discretion to
extend grace to the petitioner in order to prevent a miscarriage of
justice. 11
If “the proposed investigation” or expert testimony “would only supplement
prior evidence that had already been considered in the judicial proceedings”
preceding the clemency petition, it is generally not an abuse of discretion to
deny funding because the requested investigative and expert services would
not “provide the Board of Pardons and Paroles and the Governor with material
information beyond that already adduced.” 12 The district court may also
consider “the merits of the proposed investigation” when deciding whether to
grant or deny funding. 13
C.
For the following reasons, we conclude that the district court did not
abuse its discretion by denying Wilkins’s motion for funding. We shall discuss
each category of funding requested by Wilkins in turn.
“Fees and expenses paid for investigative, expert, and other reasonably necessary
services authorized under” 18 U.S.C. § 3599(f) are ordinarily limited to $7,500. Id. §
3599(g)(2). Fees and expenses may exceed $7,500 only if “payment in excess of that limit is
certified by the court,” the payment is “necessary to provide fair compensation for services of
an unusual character or duration, and the amount of the excess payment is approved by the
chief judge of the circuit.” Id.
10 See Brown, 762 F.3d at 459-61.
11 Id. at 460.
12 Id. at 460-61.
13 Id. at 460.
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1.
Wilkins first requests funding for further investigation into his
background and social history. He claims that he must “interview[] both family
members and also non-family members such as neighbors, teachers, case
workers, doctors, correctional, probation or parole officers” in order to compile
a “full and accurate family and social history that was not created during the
trial or state habeas corpus proceedings.” Wilkins’s proposed investigation
“would include areas such as [his] substance abuse and head traumas –
matters relevant to his mental health – and the apparent failure of the Texas
Youth Commission to provide him with needed services when he was
incarcerated in his teens.”
The district court was entitled to conclude that the proposed
investigation into Wilkins’s background and social history “would only
supplement prior evidence that had already been considered in the judicial
proceedings.” 14 First, to the extent Wilkins seeks funds to investigate his
problems with substance abuse, any evidence the investigator uncovered
would likely be cumulative of evidence introduced at trial. Several of Wilkins’s
family members testified at the sentencing phase that Wilkins struggled with
substance abuse. The jury heard testimony from multiple witnesses that,
although Wilkins was considerate, protective of his family, and hard-working
before he became involved with drugs, his drug use “destroyed his life” and
transformed him into a “very mean” person.
Likewise, the defense called five of Wilkins’s family members to testify
regarding Wilkins’s turbulent childhood and social history. Wilkins’s mother
testified that Wilkins was a product of divorce, and that she became remarried
multiple times during Wilkins’s youth. Wilkins’s often-absent biological father,
14 See id.
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who frequently failed to pay child support and had serious drug problems and
a lengthy criminal history of his own, once committed automobile theft and
tried to get Wilkins to “take responsibility for the stolen car because he was a
minor and the penalty would be less significant.” The jury also heard testimony
that, during Wilkins’s teenage years, he was involved in a serious motorcycle
accident which left him critically injured and claimed the life of one of his
friends. Thus, the district court was entitled to conclude that any information
regarding Wilkins’s background and social history which might be uncovered
during the course of his proposed investigation would likely be cumulative of
evidence introduced at trial.
2.
Wilkins confessed not only to the capital crimes for which he was
convicted, but also to additional murders and other offenses. The State
introduced evidence of Wilkins’s multiple confessions at trial. 15
Wilkins insists, however, that at least some his confessions were false.
He claims he has a “known propensity to make false, but damaging,
admissions.” He therefore argues that “the evidence supposedly corroborating
his confessions need[s] to be investigated, with that work including eyewitness
interviews and examination and evaluation of the physical and forensic
evidence.”
The district court did not abuse its discretion by denying funding to
investigate the veracity of Wilkins’s numerous confessions. As the Texas Court
of Criminal Appeals explained in its opinion affirming Wilkins’s conviction on
15 See Wilkins v. State, No. AP-75878, 2010 WL 4117677, at *2 (Tex. Crim. App. Oct.
20, 2010) (“The trial court permitted [Detective Cheryl] Johnson to testify on cross-
examination that [Wilkins] had also claimed responsibility for several murders and other
offenses in a variety of states.”).
7
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direct appeal, the State introduced crime scene photographs which
“corroborated details of [Wilkins’s] confession with respect to the manner of
killing the victims and disposing of their bodies. The photographs therefore
rebutted the defensive theory that [Wilkins] gave a false confession.” 16
Moreover, Wilkins does not argue that his confessions were coerced; he merely
claims he has a tendency to make “self-defeating choices.” The district court
could therefore reasonably conclude that further investigation into the facts
underlying Wilkins’s confessions would be fruitless.
3.
At sentencing, the prosecution introduced evidence that Wilkins
murdered an additional victim named Gilbert Vallejo. 17 Wilkins claims that
“several known alternative suspects for the murder of Gilbert Vallejo need[] to
be investigated.”
The district court was entitled to conclude this investigation would also
be fruitless. Wilkins confessed to Vallejo’s murder, 18 and, as explained above,
Wilkins does not argue that this confession was coerced. Thus, any
investigation into alternative suspects for Vallejo’s murder would probably not
uncover any exculpatory evidence which could support Wilkins’s clemency
petition.
4.
Wilkins next claims that:
Witnesses who merited further investigation included a convicted
prostitute who may have been under the influence of alcohol at the
time of her testimony and a witness who had recently received the
16 Id. at *5.
17 Id. at *2.
18 Id.
8
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minimum sentence for a felony in another county and was released
just over a month before he testified at trial.
Wilkins therefore requests funding to investigate these two witnesses.
Wilkins does not explain why further investigation of these witnesses
might uncover evidence which could support his clemency petition. This
argument is therefore meritless.
5.
Wilkins next requests funding to investigate allegations that his trial
attorney and his state habeas attorney labored under conflicts of interest. For
the reasons we explain below, the district court did not err by denying Wilkins’s
request.
a.
As noted above, Wilkins confessed to murdering Gilbert Vallejo. 19
Wilkins’s trial counsel, Wes Ball, represented Vallejo in an unrelated probation
revocation proceeding twenty years before representing Wilkins. 20 Wilkins
requests funds to investigate any alleged conflict of interest resulting from
Ball’s prior representation of Vallejo.
We have already considered and rejected Wilkins’s claim that Ball’s prior
representation of Vallejo created a conflict of interest. 21 As we explained when
denying Wilkins a petition for COA, Ball’s “representation of Vallejo had been
unequivocally terminated; the facts and issues of the prior representation had
no relation to Ball's representation of Wilkins. No evidence was produced by
19 Id.
20 Wilkins v. Stephens, 560 F. App’x at 309.
21 Id. at 308-10.
9
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Wilkins to show that Ball even remembered representing Vallejo.” 22 It is clear
that further investigation of this issue would be fruitless and would serve no
purpose other than to rehash claims which this Court already considered and
rejected.
b.
Wilkins also complains that his state habeas counsel, Jack Strickland,
accepted a job with the District Attorney’s office that had prosecuted Wilkins
shortly before Strickland filed Wilkins’s state habeas petition. Wilkins
therefore requests funds to investigate Strickland’s connections to the District
Attorney’s office.
Once again, we have already considered and rejected Wilkins’s argument
that Strickland labored under a conflict of interest. 23 In our opinion denying
Wilkins’s COA petition, we emphasized that “Strickland never missed a filing
deadline and filed a lengthy petition which raised eighteen points of error on
Wilkins’s behalf. The record reflects that Strickland actively represented”
Wilkins and “did not abandon his client.” 24
Thus, granting funds to investigate Strickland’s connections to the
District Attorney’s office would serve little purpose other than to rehash
arguments this Court has already rejected. The district court therefore did not
abuse its discretion by declining to do so.
22 Id. at 309.
23 Id. at 304.
24 Id.
10
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6.
Next, Wilkins seeks funds to interview trial jurors “with regard to the
possibility of ineffective assistance during jury selection, jury misconduct, and
whether the security measures employed at trial were obvious to the jury.”
Wilkins offers no explanation regarding how trial counsel rendered
ineffective assistance during jury selection. Nor does Wilkins explain how
interviewing jurors regarding that issue could conceivably produce evidence to
support his clemency petition. The district court therefore did not abuse its
discretion by denying funding to explore this entirely speculative avenue.
Nor does Wilkins identify the basis for his speculation that the jury
engaged in misconduct. We therefore reject this argument as well.
Nor did the district court abuse its discretion by declining to allocate
funds to investigate whether the security measures employed at trial were
obvious to the jury. Wilkins previously argued in his COA petition that “there
was an excessive number of guards in close proximity to him while he testified
at the sentencing phase, and that the use of a taser belt as a restraint with a
guard holding the remote nearby and visible to the jury impaired his
defense.” 25 We rejected that argument:
The record in the instant case makes clear that Wilkins had
attempted escape multiple times: he broke both ankles after falling
thirty feet from the outer wall of a prison basketball court; at one
point, he was discovered to have swallowed a handcuff key; one of
the key events which led to his encounter with murder victims
Freeman and Silva was an escape from a Texas halfway house. The
record also indicates a history and propensity for violence. We
therefore conclude that . . . the trial court was well within its
discretion to impose increased security measures during the
penalty phase given Wilkins's personal history . . . 26
25 Id. at 314.
26 Id.
11
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It is purely speculative whether any of the jurors knew Wilkins was wearing a
concealed taser belt, 27 and, if so, whether that fact would have mattered to any
of the jurors. The district court therefore did not abuse its discretion by denying
funding to interview the jurors regarding this issue.
7.
Wilkins next seeks to hire a neuropsychologist to perform “[a] full
neuropsychological evaluation . . . in light of [his] past head injuries, identified
cognitive deficits and risk factors for brain damage.” Wilkins claims that even
though his trial counsel hired a psychologist to evaluate his mental functioning
and develop a mitigation case, trial counsel did not pursue that psychologist’s
recommendation to conduct a full neuropsychological examination.
The district court did not abuse its discretion by denying this funding
request either. Wilkins previously requested expert funding to hire a
neuropsychologist when he filed his federal habeas petition. 28 The district
court concluded that “that the funding was not ‘reasonably necessary,’” 29 and
we agreed. 30 Thus, the district court could once again reasonably conclude that
the requested funding was not “reasonably necessary” for Wilkins’s clemency
petition, just as it was not reasonably necessary for his federal habeas petition.
8.
Although Wilkins hired a prison expert to testify on his behalf at trial,
Wilkins now claims that this expert “inaccurately and prejudicially” testified
during sentencing that Wilkins could achieve a less restrictive prison security
27 As we stated in our previous opinion in this case, “the record does not demonstrate
that the presence of the taser belt was open and obvious to the jury.” Id.
28 Id. at 302.
29 Id.
30 Id. at 315.
12
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status after ten years. In actuality, claims Wilkins, the Texas Department of
Corrections had recently made its security policies more restrictive to reduce
the likelihood that inmates like Wilkins could successfully escape. Wilkins
therefore requests funds to hire a second “prison classification and conditions
expert” to “review the testimony of the defense ‘expert’ at trial, . . . review Mr.
Wilkins’ incarceration records and assess the likely security conditions to
which he be [sic] subject if serving a life sentence.”
The district court did not abuse its discretion by denying Wilkins’s
request to hire a second prison expert. Wilkins previously sought federal
funding to hire an additional prison expert, the district court concluded “that
the funding was not ‘reasonably necessary,’” and we affirmed. 31 Wilkins is
therefore attempting to relitigate an issue he has already lost.
9.
In sum, the district court was entitled to conclude that none of the
requested funds are reasonably necessary for the preparation of Wilkins’s
clemency petition. Consequently, the court did not abuse its discretion by
denying Wilkins’s motion for expert and investigative funding.
III.
In addition to his plan to file a state clemency application, Wilkins also
plans to file a successive state habeas petition which would raise the following
claims:
• A claim that his “former counsel failed to plead specific facts,
which, if proven true, might call for relief;” 32
31 Id.
32 See Ex Parte Medina, 361 S.W.3d 633, 642-43 (Tex. Crim. App. 2011).
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• “[A] subsequent Application urging reconsideration of Ex Parte
Graves;” 33 and
• A claim that habeas counsel did not have Wilkins’s informed
consent to file his habeas petition, which was filed “without
[his] permission and against [his] will.” 34
Wilkins therefore asked the district court for expert and investigative funding
to support his proposed successive state habeas petition. The district court
denied Wilkins’s request.
Neither Wilkins’s appellate briefs nor the brief he filed in the district
court explain why investigative or expert funding is necessary to develop the
arguments he intends to raise in his successive state habeas petition. As a
result, we cannot conclude that the district court abused its discretion by
denying the requested funds. 35
IV.
We next consider whether the district court erred by denying payment
on Sheard’s CJA vouchers for work she performed on Wilkins’s behalf in state
and federal court.
A.
As noted above, this Court appointed Sheard to represent Wilkins on
appeal. After that appeal concluded, Sheard continued to represent Wilkins in
subsequent federal and state proceedings. 36 Sheard thereafter submitted two
33 See Ex Parte Graves, 70 S.W.3d 103, 105 (Tex. Crim. App. 2002).
34 See Ex Parte Gallo, 448 S.W.3d 1, 2 (Tex. Crim. App. 2014).
35 Wilkins also wishes to file a FED. R. CIV. P. 60(b) motion based on Ruiz v.
Quarterman, 504 F.3d 523, 532 (5th Cir. 2007) in the event the state court denies his
successive habeas petition. Wilkins does not explain why investigative or expert funding is
necessary to develop this argument either.
36 Among other legal services rendered on Wilkins’s behalf, Sheard (1) filed the instant
motion for federal funding for investigative and expert services; (2) filed a state court motion
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CJA vouchers to the district court requesting compensation for services
rendered on Wilkins’s behalf. The district court concluded that the subsequent
proceedings in the district and state courts exceeded the scope of Sheard’s
appointment, so it denied Sheard’s requests for compensation in their entirety.
On appeal, Sheard argues that, once this Court appointed her to
represent Wilkins, she was authorized – and, indeed, obligated – to continue
representing him in subsequent federal and state proceedings until relieved by
court order. She argues that she was not required to seek reappointment by
the district court after we appointed her as counsel. Thus, argues Sheard, she
is potentially entitled to compensation for her work in the federal and state
courts.
We agree with Sheard. This Court appointed Sheard to represent
Wilkins pursuant to 18 U.S.C. § 3599. Once a court appoints an attorney under
§ 3599, that attorney “shall represent the defendant throughout every
subsequent stage of available judicial proceedings” unless that attorney is
“replaced by similarly qualified counsel.” 37 Appointed counsel must represent
the defendant throughout “all available post-conviction process, together with
applications for stays of execution and other appropriate motions and
procedures,” as well as “competency proceedings and proceedings for executive
or other clemency.” 38
Nothing in the text of § 3599(e) requires counsel to reapply for
reappointment in the district court after the appeal concludes. Thus, generally
speaking, when this Court appoints an attorney to represent a capital
for appointment of a DNA/toolmark expert; (3) filed a state court motion for retention of juror
information; (4) participated in a hearing in state court to set an execution date; and (5) filed
a federal court motion to stay Wilkins’s execution.
37 18 U.S.C. § 3599(e) (emphasis added).
38 Id.
The Supreme Court has interpreted this provision to apply to subsequent state and
federal proceedings alike. Harbison v. Bell, 556 U.S. 180, 188 (2009).
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defendant, our order automatically authorizes that attorney to represent the
defendant in other subsequent post-conviction proceedings as well. 39
Our recent decision in Battaglia v. Stephens 40 further supports Sheard’s
argument. In that case, as in the instant case, we appointed an attorney to
represent a capital defendant on appeal. 41 After the appeal concluded,
appointed counsel refused to pursue state competency proceedings on the
petitioner’s behalf because the attorney “believe[d] that his representation
d[id] not extend to state competency proceedings.” 42 We disagreed. We
explained that, “[u]nder § 3599(e), a lawyer appointed to represent a capital
defendant is obligated to continue representing his client until a court of
competent jurisdiction grants a motion to withdraw.” 43 We therefore ruled that,
by refusing to represent the defendant in state competency proceedings, the
attorney had “abandoned” his client, and the district court therefore “erred in
declining to appoint new counsel under § 3599.” 44 Battaglia therefore
demonstrates that counsel need not return to the district court for
reauthorization before representing a capital defendant in post-appeal
proceedings; counsel is authorized – and indeed obligated – to continue
representing the defendant until the court permits him to withdraw.
39 There are exceptions to the general rule that appointed counsel must continue
representing the defendant in subsequent proceedings, but none are applicable here. See, e.g.,
Harbison, 556 U.S. at 189 (explaining that “when a state prisoner is granted a new trial
following § 2254 proceedings, his state-furnished representation renders him ineligible for §
3599 counsel until the commencement of new § 2254 proceedings”); Irick v. Bell, 636 F.3d
289, 290-93 (6th Cir. 2011) (holding that § 3599 did not authorize federally-funded counsel to
represent death-row prisoner in state competency proceedings because prisoner had a
statutory right under state law to state-funded counsel).
40 --- F.3d ----, 2016 WL 3084272 (5th Cir. Mar. 30, 2016).
41 Id. at *2.
42 Id. at *3.
43 Id. (emphasis added).
44 Id.
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So too here. Sheard acted within the authorized scope of her
appointment; she represented Wilkins in “available post-conviction process” in
state and federal proceedings, including “applications for stays of execution
and other appropriate motions and procedures” and “proceedings for executive
or other clemency,” as authorized by § 3599. 45 Sheard did not need to seek
reauthorization from the district court before representing Wilkins in these
subsequent proceedings.
Because Sheard acted within the scope of her appointment, she is
potentially entitled to payment for her services. We therefore vacate the
district court’s order denying Sheard’s CJA vouchers and remand to allow the
district court to decide whether Sheard’s requested fee constitutes appropriate
compensation.
B.
The State of Texas explicitly “takes no position on whether the district
court erred in denying counsel’s payment request.” Instead, the State claims
that this Court lacks appellate jurisdiction to decide that issue because a
“district court’s review of a fee request is an administrative act and not an
appealable judicial decision.”
We generally lack jurisdiction over appeals from orders denying or
reducing payment under a CJA voucher to the extent “that counsel disagrees
with the amount of the payment.” 46 That is because “[t]he specific amount of
[a] CJA award is” generally “left to the unreviewable discretion of the district
court.” 47
45See 18 U.S.C. § 3599(e).
46Rojem v. Workman, 655 F.3d 1199, 1202 (10th Cir. 2011) (quoting United States v.
French, 556 F.3d 1091, 1094 (10th Cir. 2009)) (emphasis in original, brackets omitted).
Accord, e.g., In re Carlyle, 644 F.3d 694, 699 (8th Cir. 2011).
47 Hooper v. Jones, 536 F. App’x 796, 800 (10th Cir. 2013).
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Crucially, however, where the attorney does not merely dispute “the
amount of expenses reasonably and necessarily incurred by counsel,” but
instead challenges the district court’s ruling regarding “whether such services
are compensable under the [CJA] as a matter of law” at all, then “this Court
has appellate jurisdiction as to the district court’s order.” 48 In other words,
where “the basis for the reduction” or denial of attorney’s fees is not “an ad hoc
administrative judgment about the appropriate size of counsel’s fee,” but
rather “a decision regarding the proper reach of appointed counsel’s authority
under the CJA statute,” then we may review the district court’s order reducing
or denying fees. 49
To illustrate, in Clark v. Johnson, the petitioner attempted to appeal “the
district court’s ruling that counsel was not entitled to compensation and
reimbursement . . . for expenses incurred in connection with [the petitioner’s]
state clemency proceeding.” 50 We ruled that we had appellate jurisdiction over
the case because the case “concern[ed] an interpretation of a federal statute by
a federal district judge,” rather than “an administrative decision about the
appropriate amount of fees for an otherwise authorized activity.” 51
48 Clark v. Johnson, 278 F.3d 459, 461 (5th Cir. 2002), abrogated in non-relevant part
by Harbison, 556 U.S. 180 (emphasis added).
The Supreme Court has overruled Clark’s holding that federal habeas counsel is not
authorized to represent the petitioner in subsequent state clemency proceedings. Compare
Harbison, 556 U.S. at 182-94 with Clark, 278 F.3d at 461-63. See also Rosales v. Quarterman,
565 F.3d 308, 312 (5th Cir. 2009) (recognizing that Harbison partially overruled Clark).
However, Clark’s jurisdictional holding remains valid after Harbison. See Hooper, 536 F.
App’x at 798-99 (continuing to rely on Clark’s jurisdictional holding after Harbison).
Clark was decided under 21 U.S.C. § 848(q), which was the predecessor to 18 U.S.C.
§ 3599. Because § 848(q) contained “essentially the same relevant language” as § 3599,
Clark’s jurisdictional holding survives the enactment of § 3599. Kelly v. Quarterman, 296 F.
App’x 381, 381 n.1 & n.2 (5th Cir. 2008).
49 Hooper, 536 F. App’x at 798.
50 278 F.3d at 461.
51 Id.
18
Case: 15-70033 Document: 00513631840 Page: 19 Date Filed: 08/10/2016
No. 15-70033 Cons. w/ No. 16-70002
Here, too, Sheard is not disputing the amount of fees to which she is
entitled. Instead, she is arguing that the district court misinterpreted § 3599
as a matter of law when it concluded that our order appointing her as appellate
counsel did not automatically authorize her to represent Wilkins in subsequent
state and federal proceedings as well. As a result, “[t]he decision whether to
compensate” Sheard “involves interpreting and applying the provisions in §
3599 governing the authorized scope of a CJA appointment.” 52 For that reason,
we have jurisdiction to adjudicate Sheard’s appeal. 53
V.
Accordingly, we (1) affirm the district court’s order denying Wilkins’s
request for funds; (2) vacate the district court’s order denying payment under
Sheard’s CJA vouchers; and (3) remand for further proceedings. 54
AFFIRMED in part, VACATED in part, and REMANDED.
52 Hooper, 536 F. App’x at 798.
53 See id.
54 We reject Sheard’s request to reassign the case to a different district judge on
remand. See In re DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir. 2002) (quoting Johnson
v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997)) (holding that we may reassign a case to a
different district judge on remand only in “extraordinary” and “rare[]” circumstances).
19