Weygandt v. Look, 82-3197

• Decision Date: 19 October 1983
• Docket Number: No. 82-3197,82-3197
• Citation: 718 F.2d 952
• Parties: Vernon C. WEYGANDT, Plaintiff-Appellant, v. Donald LOOK, Superintendent, and the Attorney General for the State of Washington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 952

718 F.2d 952

Vernon C. WEYGANDT, Plaintiff-Appellant, v. Donald LOOK, Superintendent, and the Attorney General for

the State of Washington, Defendants-Appellees.

No. 82-3197.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 3, 1983.

Decided Oct. 19, 1983.

Vernon C. Weygandt, pro se.

Michael P. Lynch, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, FLETCHER and PREGERSON, Circuit Judges.

PER CURIAM:

Weygandt appeals an interlocutory order denying his motion for appointment of counsel to represent him in the prosecution of his petition for a writ of habeas corpus. We dismiss for lack of jurisdiction.

Title 28 U.S.C. Sec. 1291 vests the courts of appeals with appellate jurisdiction over "all final decisions of the district courts." Generally, the statute is limited to decisions ending the litigation on the merits. See Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). However, in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), the Supreme Court recognized an exception for interlocutory orders falling within

that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, 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.

Under Cohen, an interlocutory order is appealable if it (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).

An interlocutory order denying appointment of counsel in a habeas corpus proceeding does not fall within the "narrow exception" established by Cohen and Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). This court's decision in Bradshaw v. Zoological Society, 662 F.2d 1301 (9th Cir.1981), that such an order in a Title VII action is appealable is not controlling.

1. In Coopers & Lybrand, the Supreme Court held an order denying class certification was not appealable in part because it may be "altered or amended before the decision on the merits," and is therefore "inherently tentative." 437 U.S. at 469 n 11, 98 S.Ct. at 2458 n. 11. We find an interlocutory order denying appointment of counsel in a habeas proceeding is similarly "inherently tentative." The rules governing habeas proceedings mandate the appointment of counsel if necessary for the effective utilization of discovery procedures (Rule 6(a), 28 U.S.C. foll. Sec. 2254), or if an evidentiary hearing is required (Rule 8(c)), but "[t]hese rules do not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at any stage of the case if the interest of justice so requires." Rule 8(c). Since the district court or magistrate may appoint counsel at any stage of the case if the interests of justice require, an order denying appointment of counsel in a habeas proceeding, like a class certification order, is "inherently tentative." In contrast, the determination of appealability in Bradshaw was specifically premised on the fact that "[t]here is no provision in any statute or rule making orders denying appointment of counsel [in a Title VII case] 'inherently tentative.' " 662 F.2d at 1306 n. 14.

2. An interlocutory order is not appealable if it "involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action.' " Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458 (quoting Mercantile National Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963)). In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. See, e.g., Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir.1981); Dillon v. United States, 307 F.2d 445, 447 (9th Cir.1962). These considerations are not separate and distinct from the underlying claim, but are inextricably enmeshed with them. In contrast, we concluded in Bradshaw that it was unnecessary for the district court to evaluate the underlying factual and legal issues of a Title VII case in deciding whether to appoint counsel since "the court need normally look only to a determination by an administrative agency,...