Jenkins v. U.S.

• Decision Date: 06 October 1988
• Docket Number: No. 87-392.,87-392.
• Citation: 548 A.2d 102
• Parties: David JENKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

548 A.2d 102

David JENKINS, Appellant, v. UNITED STATES, Appellee.

No. 87-392.

District of Columbia Court of Appeals.

Argued June 9, 1988.

Decided October 6, 1988.

William T. Morrison, Washington, D.C., appointed by this court, for appellant.

Saul M. Pilchen, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, Michael W. Farrell, Mary Ellen Abrecht, and Mary Incontro, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK, FERREN and ROGERS, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant David Jenkins of two counts of first-degree burglary, D.C. Code § 22-1801(a) (1981), one count each of assault with intent to commit rape, D.C. Code § 22-2801 (1981), and to commit sodomy, D.C. Code §§ 22-3502, -3503 (1981), and robbery, D.C. Code § 22-2901 (1981). We affirmed his convictions on direct appeal. Jenkins v. United States, 483 A.2d 660 (D.C. 1984), cert. denied, 469 U.S. 1224,105 S.Ct. 1215,84 L.Ed.2d 356 (1985). Jenkins then wrote to the trial court "in regard to the [§] 23-110 motion of the D.C. Code," see D.C. Code § 23-110 (1981) (motion attacking sentence), expressing his inability to afford the costs of bringing such a motion. Judge Scott treated Jenkins' letter as a pro se motion for appointment of counsel to assist him in filing a motion under § 23-110. The judge then denied the motion, noting that Jenkins had failed in his letter to state any basis for § 23-110 relief and concluding that appointment of counsel was thus unwarranted. Jenkins, now assisted by counsel appointed by this court, contends the trial court erred in denying his motion. The government replies, in a motion to dismiss for lack of jurisdiction, that the appeal is not ripe because the denial of Jenkins' motion for appointment of counsel does not constitute a final order. See D.C. Code § 11-721(a)(1) (1981). The government contends that Jenkins must obtain a final ruling on the merits of a § 23-110 motion before he may appeal an order denying appointment of counsel to assist in that effort. We agree with the government and dismiss the appeal.

I.

Jenkins' claim of right to appointment of counsel is grounded in D.C. Code § 11-2601 (1981), which requires the Joint Committee on Judicial Administration to implement a plan for making appointed counsel available to "any person in the District of Columbia who is financially unable to obtain adequate representation" and is "seeking collateral relief" pursuant to specified provisions of the District of Columbia Code. Id. § 11-2601(3).

Jenkins sent the following letter to the trial court:

Dear Sir:

I am writing in regard to the 23-110 motion of the D.C. Code, as amended by Section 210(a) of Public Law 9-358, and the information needed to file this motion.

I, David Jenkins, the Petitioner, hereby certify under penalties of perjury, that I have no funds available whatsoever to file a 23-110 motion or to pay for the cost of a hearing in this case.

I trust the foregoing is satisfactory. Jenkins and the government agree that the trial court properly understood the letter to request appointment of counsel to prepare a motion under D.C. Code § 23-110 collaterally attacking Jenkins' conviction.

Clearly, Jenkins did not proffer any reason for his request. The trial court accordingly ruled: "In light of the fact that defendant has not provided any basis for a § 23-110 motion, the Court concludes that appointment of counsel is unwarranted." Before discussing whether this order is appealable, it will be helpful to put Jenkins' claimed right to appointment of counsel in context.

A.

In the first place, generally speaking there is no constitutional right to appointment of counsel to develop and pursue post-conviction relief. Pennsylvania v. Finley, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). Nor is there commonly a statutory basis entitling a criminal defendant whose conviction has been affirmed on direct appeal to have counsel appointed to pursue collateral relief. See Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969). In holding that, absent a reasonable alternative, a state may not absolutely bar inmates from furnishing assistance to one another in preparing petitions for a writ of habeas corpus, the Supreme Court noted in Johnson:

It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief. See, e.g., Barker v. Ohio, 330 F.2d 594 (C.A. 6th Cir. 1964). Accordingly, the initial burden of presenting a claim to post-conviction relief usually rests upon the indigent prisoner himself with such help as he can obtain within the prison walls or the prison system. In the case of all except those who are able to help themselves — usually a few old hands or exceptionally gifted prisoners — the prisoner is, in effect, denied access to the courts unless such help is available.

Id.

The federal courts have recognized, on the other hand, that once a prisoner files a petition for a writ of habeas corpus, "the circumstances of a particular case [may] indicate that appointed counsel is necessary to prevent due process violations"; and, in any event, pursuant to federal statute, "[t]he District Court has discretion to appoint counsel for indigents when it determines `that the interests of justice so require.' 18 U.S.C. § 3006(A)(g)." Chaney v Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987); accord, Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983).

Under D.C. Code § 11-2601(3)(A), which is our local analogue of 18 U.S.C. § 3006A(g), the District of Columbia — without specifying criteria for doing so — purports to provide legal counsel for indigents "seeking collateral relief" pursuant to § 23-110. The question, then, is whether every indigent prisoner is entitled to a court-appointed lawyer to explore the possibility of collateral relief, or instead, as in the federal system, the statutory right is limited to appointment of counsel after some threshold test is met, such as the federal "interests of justice" standard. 18 U.S.C. § 3006A(g).

Unhesitatingly, we conclude that § 11-2601(3)(A) is not standardless. D.C. Code § 11-2602 specifically distinguishes between (1) "cases where a person faces a loss of liberty and the Constitution or any other law requires the appointment of counsel," in which "the court shall advise the defendant or respondent that he has the right to be represented by counsel," and (2) "cases covered by the Act where the appointment of counsel is discretionary," in which "the defendant or respondent shall be advised that counsel may be appointed to represent him." D.C. Code § 11-2602 (1981) (emphasis added). Since neither the Constitution nor any other law requires appointment of counsel for purposes of pursuing § 23-110 relief, D.C. Code § 11-2602 makes clear that any appointment of counsel for that purpose is entrusted to the sound discretion of the trial court. Absent a constitutional right to counsel under particular circumstances, Congress did not intend automatic assignment of counsel to any prisoner in the District of Columbia who simply wishes to explore collateral relief.¹ Indeed, had Congress so intended, it is likely that Congress would have adopted such a scheme for federal prisoners, which of course it did not. Accordingly, for want of any more enlightened formulation, and in recognition of the appropriate and workable standard specified under federal law, we construe § 11-2601(3)(A) to incorporate, implicitly, an "interests of justice" standard for trial court scrutiny of a prisoner's request for legal assistance.²

B.

To help define the "interests of justice" standard as applied to requests for counsel under § 11-2601(3)(A), we look initially at the relationship between a request for appointment of counsel and the criteria for trial court consideration of the § 23-110 motion itself — criteria well developed in our caselaw. D.C.Code § 23-110(c) (1981) provides in part:

Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.

We have held that this provision does not entitle a prisoner to a hearing if the motion (1) is "`palpably incredible' (though not merely `improbable')," or (2) "fails to state a claim," i.e., the assertions, even if true, would not entitle the prisoner to relief under § 23-110, or (3) is "`vague and conclusory,'" i.e., the "prisoner does not present a factual foundation in some detail." Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978); accord, Gregg v. United States, 395 A.2d 36, 39 (D.C. 1978). It will be the unusual case, we believe, when a prisoner will be entitled to appointment of counsel but the § 23-110 motion fails under the Pettaway criteria to merit a hearing. It will be rare, in other words, for the "interests of justice" to require appointment of counsel when the claim is not colorable enough to be heard in open court. The converse is also likely to be true: if the prisoner's § 23-110 claim is sufficient for a hearing, it presumably will be colorable enough to warrant appointment of counsel under § 11-2601(3)(A). We normally do not require a prisoner to conduct his or her own hearing under such circumstances.

In sum, we do not say that the criteria for entitlement to a hearing and to appointment of counsel will always, as a matter of law, produce the same positive or negative result but, we do believe that usually the "interests of justice" will be served when appointments of counsel under § 11-2601(3)(A) are limited to — but assured for —...