Copeland v. Ryan

• Decision Date: 28 March 2017
• Docket Number: No. 16-15849,16-15849
• Citation: 852 F.3d 900
• Parties: Alfred COPELAND, aka Charles Alfred Copeland, Petitioner–Appellee, v. Charles L. RYAN; Attorney General of the State of Arizona, Respondents–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

852 F.3d 900

Alfred COPELAND, aka Charles Alfred Copeland, Petitioner–Appellee,

v.Charles L. RYAN; Attorney General of the State of Arizona, Respondents–Appellants.

No. 16-15849

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2017 San Francisco, California

Filed March 28, 2017

Kristina Reeves (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; John R. Lopez, IV, Solicitor General; Mark Brnovich, Attorney General; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondents–Appellants.

Emma Isakson (argued) and Lee Stein, Mitchell Stein Carey PC, Phoenix, Arizona, for Petitioner–Appellee.

Before: Marsha S. Berzon and Richard R. Clifton, Circuit Judges, and Marvin J. Garbis,^** District Judge.

Concurrence by Judge Berzon

OPINION

CLIFTON, Circuit Judge:

Respondent Charles L. Ryan, as Director of the Arizona Department of Corrections, appeals the district court's interlocutory orders requiring him to reimburse Petitioner Alfred Copeland for deposition expenses incurred in Copeland's pending habeas proceeding under 28 U.S.C. § 2254. We have interlocutory jurisdiction under the collateral order doctrine. We conclude that a district court cannot order a state to reimburse an indigent habeas petitioner for deposition expenses in a § 2254 habeas proceeding when, as here, the state did not request the deposition. We reverse the relevant orders and remand for further proceedings to determine whether Copeland may obtain reimbursement from the federal government under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

I. Background

Following a jury trial in an Arizona state court, Copeland was convicted in February 2002 on ten different state criminal charges. The state court sentenced Copeland to a total of 118 years' imprisonment.

Eleven years later, in November 2013, Copeland filed in federal court a pro se petition for habeas corpus under 28 U.S.C. § 2254 challenging his state convictions. To overcome § 2254's one-year statute of limitations, Copeland alleged "actual innocence" on several counts of the underlying indictment.¹ The district court held that Copeland had failed to establish actual innocence on all but two of the counts of the indictment, and ordered an evidentiary hearing on the remaining two counts. In light of the evidentiary hearing and Copeland's indigent status, the district court ordered the appointment of counsel for Copeland under the CJA, 18 U.S.C. § 3006A(a)(1)(2)(B), and Rule 8(c) of the Rules Governing Section 2254 Cases.

Prior to the evidentiary hearing, the parties contacted two of Copeland's alleged victims, who had been identified as potential fact witnesses. Both victims indicated that they no longer lived in Arizona and were unwilling to travel to Arizona to participate in the hearing. At the suggestion of Copeland's appointed counsel, the district court excused the victims from appearing in person at the evidentiary hearing, and instead subpoenaed them to testify via video depositions to be taken near their respective homes outside Arizona. The district court ordered both parties' counsel to attend the depositions.

After the depositions were scheduled, Copeland's appointed counsel filed two ex parte motions requesting that the State reimburse Copeland for certain expenses incurred in connection with the out-of-state depositions.² The district court granted both applications under Federal Rule of Criminal Procedure 15(d), and ordered the State to reimburse Copeland for (1) "the expenses incurred in the taking of video depositions of [both witnesses]"; (2) "the reasonable travel and subsistence expenses incident to the attendance of [Copeland's] counsel at the depositions," including airfare, lodging, rental cars, and meals; and (3) "the costs of attendance of [both witnesses] at the depositions."

After the district court summarily denied the State's motion for reconsideration of the reimbursement orders, the State timely filed this interlocutory appeal.

II. Jurisdiction

Under the final judgment rule, appellate jurisdiction is customarily limited to "final decisions" of the district courts. 28 U.S.C. § 1291. Copeland's habeas petition is still pending before the district court, so there is no final judgment in his case yet. The State contends that we nevertheless have jurisdiction in this instance under the collateral order doctrine. We agree that there is collateral order jurisdiction here.³

The collateral order doctrine provides a narrow exception to the final judgment rule. Under the collateral order doctrine, an appellate court may exercise jurisdiction over an interlocutory ruling when the following three conditions are met: (1) the ruling constitutes a final ruling on the relevant issue; (2) the ruling resolves "important questions separate from the merits"; and (3) the ruling is "effectively unreviewable on appeal from the final judgment in the underlying action." Swint v. Chambers Cty. Comm'n , 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). Regarding the third condition, "the decisive consideration is whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order.’ " Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 107, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Will v. Hallock , 546 U.S. 345, 352–53, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) ). "In making this determination, we do not engage in an ‘individualized jurisdictional inquiry.’ " Id. (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 473, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) ). Rather, we must focus on "the entire category to which a claim belongs," and determine whether "the class of claims, taken as a whole, can be adequately vindicated by other means." Id. (internal quotation marks omitted).

All three conditions are met here. As we have previously held, this court has collateral order jurisdiction to review interlocutory orders requiring a government litigant to pay for litigation expenses incurred by the opposing party. For example, in United States v. Baker , 603 F.2d 759, 761–62 (9th Cir. 1979), we exercised jurisdiction under the collateral order doctrine to review a district court order requiring the federal government to pay, under Federal Rule of Criminal Procedure 15, the defendant's attorney's fees for expenses incurred in connection with depositions held outside the United States. Similarly, in Wiggins v. Alameda County , 717 F.2d 466, 467–68 (9th Cir. 1983), we exercised jurisdiction to review a district court's order requiring state prison officials to pay expenses associated with producing and guarding a state prisoner during the duration of his federal civil rights trial. In exercising jurisdiction under the collateral order doctrine in Wiggins , we explained that collateral order review was appropriate because the order "resolved finally the State's efforts to avoid the costs associated with securing [the plaintiff's] presence at the trial of his civil rights action," and that "[s]uch an allocation of costs to the State was completely collateral to the issues raised in the underlying civil rights suit." Id. at 468.⁴

There is no reason to deviate from these authorities here. As in Baker and Wiggins , the State challenges only the district court's orders requiring the State to reimburse Copeland for his deposition expenses. As required for collateral order review, the district court's reimbursement orders constituted the final ruling on Copeland's right to seek reimbursement from the State, the orders were separate from the merits of Copeland's habeas petition, and the orders would be effectively unreviewable on appeal from a final judgment on Copeland's habeas petition. See Swint , 514 U.S. at 42, 115 S.Ct. 1203.

Further, when viewing the State's claim as belonging to a "class of claims, taken as a whole," it is clear that this category of claims cannot be "adequately vindicated by other means." Mohawk Industries , 558 U.S. at 107, 130 S.Ct. 599. In this appeal, the State challenges orders by the district court requiring the expenditure of public funds to reimburse an indigent habeas petitioner for certain litigation expenses. If review of the reimbursement orders were delayed until after final judgment, the State would be unable to collect from the petitioner the amounts it already paid out, even if the orders were reversed on appeal. The premise of the orders was that Copeland is indigent and does not currently have the money to make the payments. He is a prisoner, so it cannot be assumed that he would in the meantime come into funds sufficient to reimburse the State for the expenses. Thus, as a practical matter, delaying review until after final judgment would leave the State with essentially no recourse to vindicate its "substantial public interest" in protecting the state fisc against the unauthorized expenditure of public funds. Will , 546 U.S. at 353, 126 S.Ct. 952. Collateral order jurisdiction is therefore appropriate here.

III. Discussion

We review de novo the district court's determination that Copeland is entitled to reimbursement from the State under Federal Rule of Criminal Procedure 15(d). See United States v. Fort , 472 F.3d 1106, 1109 (9th Cir. 2007) ("We review de novo a district court's interpretation of the Federal Rules of Criminal Procedure." (citing United States v. Navarro Viayra , 365 F.3d 790, 793 (9th Cir. 2004) )).

On appeal, the State challenges the district court's reimbursement orders on two independent grounds: (1) the reimbursement orders were unlawful because there are no statutes or rules authorizing the district court to order the State to reimburse Copeland for the deposition expenses, and (2) the orders abrogated state sovereignty in violation of the Eleventh Amendment of the U.S. Constitution. We agree with the State on the first ground. The district court was not authorized to order the State to pay...